On October 3, the FCC issued a Request for Comment on the TCPA’s definition of ATDS following the 9th Circuit’s Marks decision.  A copy of the FCC’s Request is here.  The deadline to file commentary is October 24, 2018.   The FCC seemed concerned by Marks‘ expansive interpretation of the TCPA’s definition(s). 

In other words, the [Marks] court interpreted the statutory language expansively so that an “automatic telephone dialing system” is “not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to store numbers and to dial stored numbers automatically.” The ACA court, however, held that the TCPA unambiguously foreclosed any interpretation that “would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.”  (FCC Req. at pp. 2).