In N. L. v. Credit One Bank, N.A., Nos. 19-15399, 19-15938, 2020 U.S. App. LEXIS 17434 (9th Cir. June 3, 2020), the Court of Appeals for the 9th Circuit followed Soppet and Osorio decisions regarding calls to recycled to cellular telephones.
Credit One also attempts to draw support from certain orders of the FCC, which has authority to promulgate regulations implementing the TCPA. 47 U.S.C. § 227(b)(2). In 2015, the FCC issued an order creating a one-call safe harbor for callers who unknowingly dial reassigned numbers if they had obtained consent from the previous subscriber. See Declaratory Ruling & Order, In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7999-8000 (2015) (2015 FCC Order). The D.C. Circuit later vacated the 2015 Order’s safe harbor as arbitrary and capricious. See ACA Int’l, 885 F.3d at 708-09. The FCC then issued a new order in 2018 approving the creation of a comprehensive reassigned number database and adopting a safe harbor for callers who rely on it. See Second Report & Order, In re Advanced Methods to Target & Eliminate Unlawful Robocalls, 33 FCC Rcd. 12024, 12043-45 (2018) (2018 FCC Order). In Credit One’s view, these safe harbors weigh against interpreting “called party” in a way that creates strict liability for callers that dial reassigned numbers. If anything, the FCC’s orders weigh against Credit One. If a caller’s intent could defeat liability, the safe harbors would be unnecessary. Moreover, and in reasoning that the D.C. Circuit did not reject and if anything supported, ACA Int’l, 885 F.3d at 706, the 2015 FCC Order expressly “clarif[ied] that the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone).” 2015 FCC Order, 30 FCC Rcd. at 7999 (footnote omitted). The FCC also “reject[ed]” proposals to “interpret ‘called party’ to be the ‘intended recipient’ or ‘intended called party,'” relying on the reasoning of the Seventh and Eleventh Circuits in Soppet and Osorio. Id. at 8002 & n.278. While Credit One relies most heavily on one dissenting FCC Commissioner’s views, see id. at 8077-78 (Pai, dissenting), the TCPA is best read in the way we have set forth above, under which Credit One’s preferred interpretation must fail. Finally, contrary to Credit One’s suggestion, callers are not helpless absent its “intended recipient” construction. Here, Credit One’s vendors called an eleven-year-old boy nearly 200 times before determining that he was not the delinquent cardholder they were pursuing. In all events, the FCC in its 2015 order itself recognized that “caller best practices can facilitate detection of reassignments before calls,” that “there are solutions in the marketplace to better inform callers of reassigned wireless numbers,” and “that businesses should institute new or better safeguards to avoid calling reassigned wireless numbers and facing TCPA liability.” 2015 FCC Order, 30 FCC Rcd. 7999-8000. The Seventh Circuit in Soppet offered some work-arounds as well, noting (for example) that callers can avoid TCPA liability by “hav[ing] a person make the first call” to confirm a number has not been reassigned or by using “a reverse lookup to identify the current subscriber.” 679 F.3d at 642. And this is to say nothing of any further implementation of the FCC’s safe harbors, which may provide other protections. See 2018 FCC Order, 33 FCC Rcd. at 12043-45. In all events, whether Credit One’s “intended recipient” rule reflects the better balancing of competing interests is not for us to decide. What matters here is the balance that the text of the TCPA most naturally reflects. And given the “called party” language that Congress used in the TCPA, we hold that the district court’s instruction complied with the statute.
The panel also seemed to invite the Defendant to seek en banc review of Marks, acknowledging that the panel was bound by Marks unless en banc review found otherwise.
There is an acknowledged circuit split on this issue. Our decision in Marks parted ways with the Third Circuit’s decision in Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018). See Marks, 904 F.3d at 1052 n.8. Subsequently, the Seventh and Eleventh Circuits issued forceful decisions disagreeing with Marks. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 466-67 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, 1306-13 (11th Cir. 2020). Most recently, the Second Circuit weighed in on the side of Marks. See Duran v. La Boom Disco, Inc., 955 F.3d 279, 281 n.5 (2d Cir. 2020). The ATDS definitional issue is a difficult one, but the issue before us is not: as a three-judge panel, we are bound by Marks, as Credit One agrees. See, e.g., Multi Time Mach., Inc. v. Amazon.com, Inc., 804 F.3d 930, 936 n.2 (9th Cir. 2015). Because the jury instruction on the definition of ATDS is consistent with Marks, Credit One’s challenge to that definition fails.2