Jordan Marks v. Crunch San Diego, LLC ( 2018 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JORDAN MARKS, individually and on          No. 14-56834
    behalf of all others similarly
    situated,                                     D.C. No.
    Plaintiff-Appellant,    3:14-cv-00348-
    BAS-BLM
    v.
    CRUNCH SAN DIEGO, LLC,                       OPINION
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    Cynthia A. Bashant, District Judge, Presiding
    Argued and Submitted December 6, 2016
    Submission Vacated December 14, 2016
    Resubmitted September 13, 2018
    Pasadena, California
    Filed September 20, 2018
    Before: Consuelo M. Callahan, Carlos T. Bea,
    and Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Ikuta
    2                MARKS V. CRUNCH SAN DIEGO
    SUMMARY*
    Telephone Consumer Protection Act
    The panel vacated the district court’s grant of summary
    judgment to the defendant on a claim under the Telephone
    Consumer Protection Act, which places restrictions on the use
    of automated telephone equipment.
    The plaintiff alleged that three text messages that he
    received from the defendant violated the TCPA. The district
    court held that the automatic text messaging system that had
    sent the messages was not an automatic telephone dialing
    system (“ATDS”) under the TCPA because it lacked the
    present or potential capacity “to store or produce telephone
    numbers to be called, using a random or sequential number
    generator.” After the district court ruled, the D.C. Circuit
    issued its opinion in ACA Int’l v. Fed. Comm’cns Comm’n,
    
    885 F.3d 687
    (D.C. Cir. 2018), invalidating the FCC’s
    interpretation of questions raised by the statutory definition
    of an ATDS.
    The panel held that, in light of ACA Int’l, and based on its
    own review of the TCPA, the statutory definition of an ATDS
    includes a device that stores telephone numbers to be called,
    whether or not those numbers have been generated by a
    random or sequential number generator. The panel remanded
    the case for further proceedings.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    MARKS V. CRUNCH SAN DIEGO                  3
    COUNSEL
    Seyed Abbas Kazerounian (argued) and Jason A. Ibey,
    Kazerouni Law Group APC, Costa Mesa, California; Joshua
    B. Swigart, Hyde & Swigart, San Diego, California; for
    Plaintiff-Appellant.
    Ian C. Ballan (argued), Lori Chang, Nina D. Boyajian, and
    Justin A. Barton, Greenberg Traurig LLP, Los Angeles,
    California, for Defendant-Appellee.
    Shay Dvoretzky, Jeffrey R. Johnson, and Vivek Suri, Jones
    Day, Washington, D.C., for Amicus Curiae Sirius XM Radio
    Inc.
    Brian Melendez, Barnes & Thornburg LLP, Minneapolis,
    Minnesota, for Amicus Curiae ACA International.
    Stuart T. Rossman and Carolyn Carter, National Consumer
    Law Center, Boston, Massachusetts; Ira Rheingold, National
    Association of Consumer Advocates, Washington, D.C.; for
    Amici Curiae National Consumer Law Center and National
    Association of Consumer Advocates.
    4             MARKS V. CRUNCH SAN DIEGO
    OPINION
    IKUTA, Circuit Judge:
    Jordan Marks appeals the grant of summary judgment to
    Crunch Fitness on his claim that three text messages he
    received from Crunch violated the Telephone Consumer
    Protection Act (TCPA), 47 U.S.C. § 227. The district court
    held that the automatic text messaging system that had sent
    the messages was not an automatic telephone dialing system
    (ATDS) under the TCPA, because it lacked the present or
    potential capacity “to store or produce telephone numbers to
    be called, using a random or sequential number generator.”
    
    Id. § 227(a)(1).
    In light of the D.C. Circuit’s recent opinion
    in ACA International v. Federal Communications
    Commission, 
    885 F.3d 687
    (D.C. Cir. 2018) (which was
    decided after the district court ruled), and based on our own
    review of the TCPA, we conclude that the statutory definition
    of ATDS includes a device that stores telephone numbers to
    be called, whether or not those numbers have been generated
    by a random or sequential number generator. Therefore, we
    reverse the district court’s grant of summary judgment.
    I
    A
    By the early 1990s, telemarketing was in its golden age.
    Telemarketing sales had “skyrocketed to over $435 million in
    1990,” which was a “fourfold increase since 1984.”
    137 Cong. Rec. S16,971 (daily ed. June 27, 1991) (statement
    of Rep. Pressler). “This marketing success ha[d] created an
    industry in which over 300,000 telemarketing solicitors
    call[ed] more than 18 million Americans every day.” 
    Id. In MARKS
    V. CRUNCH SAN DIEGO                     5
    part, this was due to the advent of machines that
    “automatically dial a telephone number and deliver to the
    called party an artificial or prerecorded voice message.”
    S. Rep. No. 102-178, at 2 (1991). Advertisers found these
    autodialers highly efficient because they could “ensure that a
    company’s message gets to potential customers in the exact
    same way, every time, without incurring the normal cost of
    human intervention.” H.R. Rep. No. 102-317, at 6 (1991).
    At that time, a single autodialer could cause as many as 1,000
    phones to ring and then deliver a prerecorded message to
    each. 
    Id. at 10.
    The dark side of this success story caught Congress’s
    attention.     As Senator Fritz Hollings complained,
    “[c]omputerized calls are the scourge of modern civilization.
    They wake us up in the morning; they interrupt our dinner at
    night; they force the sick and elderly out of bed; they hound
    us until we want to rip the telephone right out of the wall.”
    137 Cong. Rec. S16,205 (daily ed. Nov. 7, 1991) (statement
    of Sen. Hollings). Recipients deemed that “automated
    telephone calls that deliver an artificial or prerecorded voice
    message are more of a nuisance and a greater invasion of
    privacy than calls placed by ‘live’ persons.” S. Rep. No. 102-
    178, at 4. Among other reasons, “[t]hese automated calls
    cannot interact with the customer except in preprogrammed
    ways, do not allow the caller to feel the frustration of the
    called party” and deprive customers of “the ability to slam the
    telephone down on a live human being.” 
    Id. at 4
    & n.3
    (citation omitted). Congress also noted surveys wherein
    consumers responded that the two most annoying things were
    (1) “[p]hone calls from people selling things” and (2) “phone
    calls from a computer trying to sell something.” H.R. Rep.
    No. 102-317, at 9.
    6              MARKS V. CRUNCH SAN DIEGO
    The volume of automated telemarketing calls was not
    only an annoyance but also posed dangers to public safety.
    S. Rep. No. 102-177, at 20 (1991). “Due to advances in auto-
    dialer technology,” the machines could be programmed to
    call numbers in large sequential blocks or dial random 10-
    digit strings of numbers. 
    Id. This resulted
    in calls hitting
    hospitals and emergency care providers “and sequentially
    delivering a recorded message to all telephone lines.” 
    Id. And because
    some autodialers would “not release [the line]
    until the prerecorded message is played, even when the
    called party hangs up,” H.R. Rep. No. 102-317, at 10,
    there was a danger that the autodialers could “seize”
    emergency or medical assistance telephone lines, rendering
    them inoperable, and “dangerously preventing those lines
    from being utilized to receive calls from those needing
    emergency services,” H.R. Rep. No. 101-633, at 3 (1990).
    Representative Marge Roukema noted that it was “not just
    calls to doctors’ offices or police and fire stations that pose a
    public health hazard.” 137 Cong. Rec. H35,305 (daily ed.
    Nov. 26, 1991) (statement of Rep. Roukema). She recounted
    “the sheer terror” of a New York mother who, when she tried
    to call an ambulance for her injured child, “picked up her
    phone only to find it occupied by a computer call that would
    not disconnect.” 
    Id. at 35,305–06.
    In light of these and other concerns, Senator Hollings
    introduced a bill to amend the Communications Act of 1934,
    in order to “protect the privacy interests of residential
    telephone subscribers by placing restrictions on unsolicited,
    automated telephone calls to the home and to facilitate
    interstate commerce by restricting certain uses of facsimile
    (fax) machines and automatic dialers.” S. Rep. No. 102-178,
    at 1. This bill became the Telephone Consumer Protection
    Act of 1991.
    MARKS V. CRUNCH SAN DIEGO                     7
    As originally enacted, the TCPA placed restrictions on the
    use of automated telephone equipment, including automatic
    telephone dialing systems and telephone facsimile machines.
    The statute defined “automatic telephone dialing systems”
    (ATDS) as follows:
    (1) The term ‘automatic telephone dialing
    system’ means equipment which has the
    capacity—
    (A) to store or produce telephone numbers
    to be called, using a random or sequential
    number generator; and
    (B) to dial such numbers.
    Pub. L. No. 102-243, § 227, 105 Stat. 2394, 2395. This
    language established Congress’s intent to regulate equipment
    that is “automatic,” and that has “the capacity” to function in
    two specified ways: “to store or produce telephone numbers
    to be called, using a random or sequential number generator”
    and “to dial” those telephone numbers. Although the TCPA
    has been amended several times since its original enactment,
    Congress has never revised the definition of an ATDS.
    Therefore, Congress’s decision to regulate only those devices
    which have the aforementioned functions, capacity, and
    ability to function automatically remains unchanged.
    The TCPA prohibited the use of an ATDS to make “any
    call (other than a call made for emergency purposes or made
    with the prior express consent of the called party) using any
    automatic telephone dialing system or an artificial or
    prerecorded voice” to emergency telephone lines, hospital
    rooms or other health care facilities, and paging and cellular
    8                MARKS V. CRUNCH SAN DIEGO
    telephones. 47 U.S.C. § 227(b)(1)(A) (1991). It also
    prohibited the use of an ATDS “in such a way that two or
    more telephone lines of a multi-line business are engaged
    simultaneously.” 
    Id. § 227(b)(1)(D).
    As required by the TCPA, 
    id. § 227(b)(2),
    in 1992 the
    FCC promulgated rules to implement the statute. See Rules
    & Regulations Implementing the Tel. Consumer Prot. Act of
    1991, 7 FCC Rcd. 8752, 8753 (1992). The FCC did not
    elaborate on the functions of an ATDS and its definition
    merely tracked the statutory definition. 
    Id. at 8755
    n.6,
    8792.1
    B
    It was not until ten years later that the FCC realized that
    “the telemarketing industry ha[d] undergone significant
    changes in the technologies and methods used to contact
    consumers,” and such marketplace changes warranted
    modifications to the existing rules. Rules & Regulations
    Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC
    Rcd. 14,014, 14,017 (2003) (2003 Order). In particular, the
    1
    As originally promulgated, 47 C.F.R. § 64.1200(f)(1) (1992)
    provided:
    (f) As used in this section:
    (1) The terms automatic telephone dialing system and
    autodialer mean equipment which has the capacity to
    store or produce telephone numbers to be called using
    a random or sequential number generator and to dial
    such numbers.
    The same definition is in force today.
    MARKS V. CRUNCH SAN DIEGO                     9
    FCC was concerned about the proliferating use of the
    predictive dialer, which is “an automated dialing system that
    uses a complex set of algorithms to automatically dial
    consumers’ telephone numbers in a manner that ‘predicts’ the
    time when a consumer will answer the phone and a
    telemarketer will be available to take the call.” 
    Id. at 14,022
    n.31. Unlike the automated telemarketing devices prevalent
    in the early 1990s, which dialed a random or sequential block
    of numbers, predictive dialers generally automatically dialed
    a list of numbers that had been preprogrammed and stored in
    the dialer, or were downloaded from a computer database. 
    Id. at 14,090.
    In order to determine whether the TCPA applied to this
    new technology, the FCC had to assess whether the predictive
    dialer qualified as an ATDS. This required consideration of
    the statutory definition: whether the equipment was
    “automatic” and whether it had the capacity to function in the
    two relevant ways.
    In a series of rulings, from 2003 to 2015, the FCC
    determined that predictive dialers and other new technology
    qualified as an ATDS, even if they did not generally generate
    or store random or sequential numbers. In its 2003 ruling, the
    FCC reasoned that a predictive dialer may have the
    “capacity” to dial random and sequential numbers, even if it
    was not currently being used for such a purpose. 
    Id. at 14,091.
    The FCC acknowledged the telemarketing industry’s
    argument that predictive dialers do not fall within the
    statutory definition of ATDS because they “do not dial
    numbers ‘randomly or sequentially,’” but nevertheless
    concluded that predictive dialers’ “hardware, when paired
    with certain software, ha[d] the capacity to store or produce
    numbers and dial those numbers at random, in sequential
    10             MARKS V. CRUNCH SAN DIEGO
    order, or from a database of numbers.” 
    Id. at 14,090–91.
    In
    its later 2015 order, the FCC went even further, and
    determined that a device could have the requisite capacity if
    it had any potential to be configured for that purpose. Rules
    & Regulations Implementing the Tel. Consumer Prot. Act of
    1991, 30 FCC Rcd. 7961, 7974 (2015) (2015 Declaratory
    Ruling) (holding that “the capacity of an autodialer is not
    limited to its current configuration but also includes its
    potential functionalities”).
    Second, the FCC suggested that a device could qualify as
    an ATDS even if it entirely lacked the capacity to dial
    numbers randomly or sequentially. Thus in its 2012 ruling,
    the FCC stated that the definition of an ATDS “covers any
    equipment that has the specified capacity to generate numbers
    and dial them without human intervention regardless of
    whether the numbers called are randomly or sequentially
    generated or come from calling lists.” Rules & Regulations
    Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC
    Rcd. 15,391, 15,392 n.5 (2012) (2012 Declaratory Ruling).
    The FCC’s subsequent 2015 ruling, however, made the
    contrary suggestion that a device would not meet the
    definition of an ATDS unless it had the capacity to dial
    random or sequential numbers. See 2015 Declaratory Ruling,
    30 FCC Rcd. at 7971–72 (“We reaffirm our previous
    statements that dialing equipment generally has the capacity
    to store or produce, and dial random or sequential numbers
    (and thus meets the TCPA’s definition of ‘autodialer’) even
    if it is not presently used for that purpose, including when the
    caller is calling a set list of consumers.”).
    The FCC relied on policy and legislative history to
    support its application of the definition of ATDS to new
    technology. The FCC reasoned that “through the TCPA,
    MARKS V. CRUNCH SAN DIEGO                            11
    Congress was attempting to alleviate a particular
    problem—an increasing number of automated and
    prerecorded calls to certain categories of numbers,” and
    therefore Congress intended for any device that had the basic
    function of being automatic, i.e., had “the capacity to dial
    numbers without human intervention,” 2003 Order, 18 FCC
    Rcd. at 14,092, to be regulated under the TCPA.2 Further, the
    FCC thought that it was clear “that Congress anticipated that
    the FCC, under its TCPA rulemaking authority, might need
    to consider changes in technologies.” 
    Id. Accordingly, the
    FCC concluded that an interpretation of the statutory
    definition of ATDS which excluded new technology that
    could automatically dial thousands of numbers merely
    because it “relies on a given set of numbers would lead to an
    unintended result” and fail to effectuate the purpose of the
    statutory requirement. 
    Id. C After
    the FCC’s 2015 ruling, a large number of regulated
    entities challenged the FCC’s definition of an ATDS in the
    D.C. and Seventh Circuits, and the petitions were
    consolidated in the D.C. Circuit. See Consolidation Order,
    ACA Int’l v. FCC, 
    885 F.3d 687
    (D.C. Cir. 2018) (No. 15-
    1211).      Among other things, petitioners had sought
    clarification from the FCC on how the TCPA applied to new
    technologies, including cloud-based dialing options and
    2
    In the 2003 order, the FCC also confirmed that the TCPA applied to
    both voice calls and “text calls to wireless numbers” including short
    message service (SMS) calls, which “provide[] the ability for users to send
    and receive text messages to and from mobile handsets with maximum
    message length ranging from 120 to 500 characters.” 2003 Order, 18
    FCC Rcd. at 14,115 & n.606 (citation omitted).
    12             MARKS V. CRUNCH SAN DIEGO
    smartphone apps. 2015 Declaratory Ruling, 30 FCC Rcd. at
    7970. In challenging the 2015 order, petitioners argued that
    they had not received the clarification they sought, asserting
    specifically that the FCC erred in concluding that equipment
    that merely had the potential future capacity to function as an
    autodialer, taking into account possible upgrades or
    modifications, met the statutory definition of ATDS. ACA
    
    Int’l, 885 F.3d at 696
    . They also challenged the FCC’s
    conclusion that equipment qualifies as an ATDS so long as it
    can automatically dial from a list of numbers, even if it does
    not have the capacity to store or produce random or
    sequential numbers. 
    Id. at 694.
    The D.C. Circuit first asked whether it had jurisdiction to
    consider all of the FCC’s rulings on this issue, including
    those that predated the 2015 order. Although normally all
    challenges to an FCC rule must be made within 60 days after
    its entry, 28 U.S.C. § 2344, a petition for a rulemaking may
    reopen consideration of prior rulemakings, see Pub. Citizen
    v. Nuclear Regulatory Comm’n, 
    901 F.2d 147
    , 151–52 (D.C.
    Cir. 1990). “An agency’s reconsideration of a rule in a new
    rulemaking constitutes a reopening when the original rule is
    ‘reinstated’ so as to have renewed effect.” Biggerstaff v. FCC,
    
    511 F.3d 178
    , 185 (D.C. Cir. 2007) (quoting Pub. 
    Citizen, 901 F.2d at 152
    ). The D.C. Circuit concluded that the
    parties’ 2015 rulemaking petition to the FCC reopened
    consideration of the definition of ATDS established in the
    FCC’s 2003 order, as well as its subsequent rulings. ACA
    
    Int’l, 885 F.3d at 701
    .
    On the merits, the D.C. Circuit invalidated the FCC’s
    interpretation of the two key questions raised by the statutory
    definition of an ATDS, namely: “(i) when does a device have
    MARKS V. CRUNCH SAN DIEGO                     13
    the ‘capacity’ to perform the two enumerated functions; and
    (ii) what precisely are those functions?” 
    Id. at 695.
    Turning first to the FCC’s interpretation of “capacity,” the
    D.C. Circuit concluded it was overbroad. According to the
    court, the “straightforward understanding of the
    Commission’s ruling is that all smartphones qualify as
    autodialers because they have the inherent ‘capacity’ to gain
    ATDS functionality by downloading an app.” 
    Id. at 700.
    Because “[i]t cannot be the case that every uninvited
    communication from a smartphone infringes federal law, and
    that nearly every American is a TCPA-violator-in-waiting, if
    not a violator-in-fact,” 
    id. at 698,
    the D.C. Circuit concluded
    that the FCC’s interpretation “is an unreasonably, and
    impermissibly, expansive one,” 
    id. at 700.
    Turning to the second issue, the D.C. Circuit concluded
    that the FCC’s explanation of the functions of an ATDS was
    inadequate. The court explained that “[a] basic question
    raised by the statutory definition is whether a device must
    itself have the ability to generate random or sequential
    telephone numbers to be dialed,” or whether it would be
    “enough if the device can call from a database of telephone
    numbers generated elsewhere.” 
    Id. at 701.
    The FCC had
    stated that a device qualified as an ATDS only if it could
    generate random or sequential numbers to be dialed, but also
    indicated that a device which could only dial numbers from
    a stored list also qualified as an ATDS. 
    Id. at 701–02.
    While
    “[i]t might be permissible for the Commission to adopt either
    interpretation,” the D.C. Circuit held that “the Commission
    cannot, consistent with reasoned decisionmaking, espouse
    both competing interpretations in the same order.” 
    Id. at 703.
    The D.C. Circuit also noted that the 2015 ruling lacked clarity
    on whether an autodialer must dial numbers without human
    14              MARKS V. CRUNCH SAN DIEGO
    intervention. Although the FCC indicated that “the ‘basic
    function[]’ of an autodialer is to ‘dial numbers without human
    intervention,’” it declined a request to clarify that a dialer
    must have such a feature. 
    Id. (alteration in
    original) (quoting
    2015 Declaratory Ruling, 30 FCC Rcd. at 7975). Because
    “[t]he order’s lack of clarity about which functions qualify a
    device as an autodialer compounds the unreasonableness of
    the Commission’s expansive understanding of when a device
    has the ‘capacity’ to perform the necessary functions,” the
    court “set aside the Commission’s treatment of those
    matters.” 
    Id. II We
    now turn to the facts of this case. The device at issue
    in this appeal is called the Textmunication system, which is
    a web-based marketing platform designed to send
    promotional text messages to a list of stored telephone
    numbers.3 Phone numbers are captured and stored in one of
    three ways: An operator of the Textmunication system may
    manually enter a phone number into the system; a current or
    potential customer may respond to a marketing campaign
    with a text (which automatically provides the customer’s
    phone number); or a customer may provide a phone number
    by filling out a consent form on a Textmunication client’s
    website. A client of Textmunication can then design a
    marketing campaign that, for example, offers customers free
    passes and personal training sessions, provides appointment
    reminders and class updates, or sends birthday greetings, and
    3
    We have concluded that the TCPA applies to text messages because
    it is “a form of communication used primarily between telephones.”
    Satterfield v. Simon & Schuster, Inc., 
    569 F.3d 946
    , 953–54 (9th Cir.
    2009).
    MARKS V. CRUNCH SAN DIEGO                   15
    the Textmunication system will automatically send the
    desired messages to the stored phone numbers at a time
    scheduled by the client.
    Crunch Fitness communicates with its prospective and
    current gym members by sending text messages through this
    Textmunication system. When Crunch wants to send a text
    message to its current or prospective customers, a Crunch
    employee logs into the Textmunication system, selects the
    recipient phone numbers, generates the content of the
    message, and selects the date and time for the message to be
    sent. The Textmunication system will then automatically
    send the text messages to the selected phone numbers at the
    appointed time.
    Jordan Marks signed up for a gym membership with
    Crunch Fitness in 2012. After joining the gym, Marks
    received three text messages from Crunch over a period of
    eleven months. Marks’s phone carrier charged him incoming
    tolls for each of these text messages. In February 2014,
    Marks filed a putative class action complaint against Crunch,
    alleging violations of § 227(b) of the TCPA. He claimed that
    Crunch “negligently contact[ed] [him] on [his] cellular
    telephone, in violation of the [TCPA], thereby invading [his]
    privacy.” Marks alleged that the text messages were sent
    using an ATDS which has “the capacity to send text messages
    to cellular telephone numbers from a list of telephone
    numbers automatically and without human intervention.”
    The district court granted summary judgment in favor of
    Crunch on the ground that the Textmunication system did not
    qualify as an ATDS because it presently lacked a random or
    sequential number generator, and did not have the potential
    capacity to add such a feature. Because it defined an ATDS
    16               MARKS V. CRUNCH SAN DIEGO
    as necessarily including a random or sequential number
    generator, the court did not consider the declaration of
    Marks’s expert witness, Jeffrey Hansen, stating that the
    Textmunication system called numbers from a stored list.
    The court therefore denied Crunch’s motion to exclude
    Hansen’s testimony as moot. Marks timely appealed. We
    vacated submission of Marks’s appeal pending the issuance
    of ACA International.
    III
    A
    After ACA International was issued, we ordered
    supplemental briefing to address the impact of the D.C.
    Circuit’s opinion on this case. Under the Hobbs Act, an
    appellate court “has exclusive jurisdiction to enjoin, set aside,
    suspend (in whole or in part), or to determine the validity
    of—(1) all final orders of the [FCC] made reviewable by
    [47 U.S.C § 402(a)],” 28 U.S.C. § 2342, so long as the appeal
    is timely, meaning that it was brought within sixty days from
    when the FCC releases the final order to the public, see
    28 U.S.C. § 2344.4 Here, various parties timely challenged
    the FCC’s 2015 order in both the Seventh and D.C. Circuits;
    these challenges were consolidated and assigned to the D.C.
    Circuit, which then became “the sole forum for addressing
    . . . the validity of the FCC’s” order. MCI Telecomms. Corp.
    4
    An appellate court lacks authority to consider a challenge to an FCC
    order that is brought after sixty days from the date when the FCC releases
    the final order to the public. See 28 U.S.C. § 2344; see also U.S. W.
    Commc’ns, Inc. v. Jennings, 
    304 F.3d 950
    , 958 n.2 (9th Cir. 2002) (stating
    that “[p]roperly promulgated FCC regulations currently in effect must be
    presumed valid” for purposes of a case not brought pursuant to a petition
    under the Hobbs Act).
    MARKS V. CRUNCH SAN DIEGO                    17
    v. U.S. W. Commc’ns, 
    204 F.3d 1262
    , 1267 (9th Cir. 2000)
    (quoting GTE South, Inc. v. Morrison, 
    199 F.3d 733
    , 743 (4th
    Cir. 1999)). Because the D.C. Circuit exercised its authority
    to set aside the FCC’s interpretations of the definition of an
    ATDS in the 2015 order, 28 U.S.C. § 2342, and any prior
    FCC rules that were reinstated by the 2015 order, see
    
    Biggerstaff, 511 F.3d at 185
    (quoting Pub. 
    Citizen, 901 F.2d at 152
    ), we conclude that the FCC’s prior orders on that issue
    are no longer binding on us. See King v. Time Warner Cable
    Inc., 
    849 F.3d 473
    , 476–77 (2d Cir. 2018) (holding that ACA
    International “invalidated that [FCC 2015 Declaratory
    Ruling] and thereby removed any deference we might owe to
    the views the FCC expressed in it”); Dominguez ex rel
    Himself v. Yahoo, Inc., 
    894 F.3d 116
    , 119 (3d Cir. 2018)
    (holding that in light of the D.C. Circuit’s holding, the court
    was free to interpret the statutory definition of an autodialer
    as it had prior to the issuance of the FCC’s 2015 order).
    We review a district court’s grant of summary judgment
    de novo, viewing the evidence in the light most favorable to
    the nonmoving party in order to determine whether there are
    any genuine issues of material fact. Thomas v. Ponder,
    
    611 F.3d 1144
    , 1149–50 (9th Cir. 2010). The district court
    had jurisdiction under 28 U.S.C. § 1331. We have
    jurisdiction under 28 U.S.C. § 1291.
    B
    Because the D.C. Circuit vacated the FCC’s interpretation
    of what sort of device qualified as an ATDS, only the
    statutory definition of ATDS as set forth by Congress in 1991
    18                 MARKS V. CRUNCH SAN DIEGO
    remains. See 47 U.S.C. § 227(a).5 Accordingly, we must
    begin anew to consider the definition of ATDS under the
    TCPA.
    We “begin [our analysis] with the plain language of the
    statute.” Guido v. Mount Lemmon Fire Dist., 
    859 F.3d 1168
    ,
    1170 n.1 (9th Cir. 2017) (alteration in original) (quoting
    Negusie v. Holder, 
    555 U.S. 511
    , 542 (2009)). “If the
    ‘statutory text is plain and unambiguous[,]’ we ‘must apply
    the statute according to its terms.’” 
    Id. (alteration in
    original)
    (quoting Carcieri v. Salazar, 
    555 U.S. 379
    , 387 (2009)). If
    the language of a statute is ambiguous, “we may use canons
    of construction, legislative history, and the statute’s overall
    purpose to illuminate Congress’s intent.” Ileto v. Glock, Inc.,
    
    565 F.3d 1126
    , 1133 (9th Cir. 2009) (quoting Jonah R. v.
    Carmona, 
    446 F.3d 1000
    , 1005 (9th Cir. 2006)). “It is also ‘a
    fundamental canon of statutory construction that the words of
    a statute must be read in their context and with a view to their
    place in the overall statutory scheme.’” FDA v. Brown &
    Williamson Tobacco Corp., 
    529 U.S. 120
    , 133 (2000)
    (quoting Davis v. Michigan Dep’t of Treasury, 
    489 U.S. 803
    ,
    809 (1989)). “In ascertaining the plain meaning of [a] statute,
    the court must look to the particular statutory language at
    issue, as well as the language and design of the statute as a
    whole.” K Mart Corp. v. Cartier, Inc., 
    486 U.S. 281
    , 291
    (1988); see also United States v. Lewis, 
    67 F.3d 225
    , 228–29
    (9th Cir. 1995) (“Particular phrases must be construed in light
    5
    Although the FCC had promulgated a regulation defining ATDS, the
    “regulation does little more than restate the terms of the statute itself,” and
    “the existence of a parroting regulation does not change the fact that the
    question here is not the meaning of the regulation but the meaning of the
    statute.” Gonzales v. Oregon, 
    546 U.S. 243
    , 257 (2006).
    MARKS V. CRUNCH SAN DIEGO                   19
    of the overall purpose and structure of the whole statutory
    scheme.”).
    As the D.C. Circuit noted, the definition of ATDS
    “naturally raises two questions: (i) when does a device have
    the ‘capacity’ to perform the two enumerated functions; and
    (ii) what precisely are those functions?” ACA 
    Int’l, 885 F.3d at 695
    . We start by addressing the second question regarding
    functions. The TCPA defines ATDS as “equipment which
    has the capacity—(A) to store or produce telephone numbers
    to be called, using a random or sequential number generator;
    and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The
    question is whether, in order to be an ATDS, a device must
    dial numbers generated by a random or sequential number
    generator or if a device can be an ATDS if it merely dials
    numbers from a stored list. We must also determine to what
    extent the device must function without human intervention
    in order to qualify as an ATDS.
    Marks and Crunch offer competing interpretations of the
    language of § 227(a)(1)(A), but both parties fail to make
    sense of the statutory language without reading additional
    words into the statute.
    Marks points out that a number generator is not a storage
    device; a device could not use “a random or sequential
    number generator” to store telephone numbers. Therefore,
    Marks asserts, it does not make sense to read “store” in
    subdivision (A) as applying to “telephone numbers to be
    called, using a random or sequential number generator.”
    47 U.S.C. § 227(a)(1)(A). Instead, Marks contends that we
    should read the definition as providing that an ATDS is
    “equipment which has the capacity (A) to [i] store [telephone
    numbers to be called] or [ii] produce telephone numbers to be
    20                MARKS V. CRUNCH SAN DIEGO
    called, using a random or sequential number generator; and
    (B) to dial such numbers.” In other words, a piece of
    equipment qualifies as an ATDS if it has the capacity to store
    telephone numbers and then dial them.
    Crunch, in turn, argues that due to the placement of the
    comma in the statute, the phrase “using a random or
    sequential number generator” modifies both “store” and
    “produce.” Therefore, Crunch argues that the best reading of
    the statute defines an ATDS as “equipment which has the
    capacity (A) to store [telephone numbers produced using a
    random or sequential number generator]; or [to] produce
    telephone numbers to be called, using a random or sequential
    number generator; and (B) to dial such numbers.” As such,
    to qualify as an ATDS, according to Crunch, a device must
    store telephone numbers that have been produced using a
    random or sequential number generator.
    After struggling with the statutory language ourselves, we
    conclude that it is not susceptible to a straightforward
    interpretation based on the plain language alone. Rather, the
    statutory text is ambiguous on its face.6 The D.C. Circuit
    apparently agreed, stating that “[i]t might be permissible” for
    the FCC to adopt an interpretation that a device had to
    generate random or sequential numbers in order to be an
    ATDS, or that a device could be an ATDS if it was limited to
    dialing numbers from a stored list. ACA 
    Int’l, 885 F.3d at 702
    –03. We therefore turn to other aids in statutory
    interpretation.
    6
    Our statement in Satterfield that “the statutory text is clear and
    unambiguous” referred to only one aspect of the text: whether a device
    had the “capacity ‘to store or produce telephone numbers . . . 
    .’” 569 F.3d at 951
    (emphasis in original).
    MARKS V. CRUNCH SAN DIEGO                              21
    C
    Because the statutory language is ambiguous, we look at
    the context and the structure of the statutory scheme. The
    structure and context of the TCPA as originally enacted
    indicate that Congress intended to regulate devices that make
    automatic calls. Although Congress focused on regulating
    the use of equipment that dialed blocks of sequential or
    randomly generated numbers—a common technology at that
    time—language in the statute indicates that equipment that
    made automatic calls from lists of recipients was also covered
    by the TCPA.
    This conclusion is supported by provisions in the TCPA
    allowing an ATDS to call selected numbers. For instance, the
    TCPA permitted use of autodialers for a call “made with the
    prior express consent of the called party.” 47 U.S.C.
    § 227(b)(1)(A) (1991). To take advantage of this permitted
    use, an autodialer would have to dial from a list of phone
    numbers of persons who had consented to such calls, rather
    than merely dialing a block of random or sequential
    numbers.7 Congress’s 2015 amendment to the TCPA
    7
    Other provisions in the statute prohibited calls to specified numbers.
    For instance, the statute authorized the FCC to establish and use a national
    database “to compile a list of telephone numbers of residential subscribers
    who object to receiving telephone solicitations” and who could not be
    called by telemarketers. 
    Id. § 227(c)(3).
    It likewise prohibited calls to
    emergency telephone lines, 
    id. § 227(b)(1)(A)(i),
    patient rooms in
    hospitals or other health care facilities, 
    id. § 227(b)(1)(A)(ii),
    and paging
    services and cellular phones, 
    id. § 227(b)(1)(A)(iii).
    In order to comply
    with such restrictions, an ATDS could either dial a list of permitted
    numbers (as allowed for autodialed calls made with the prior express
    consent of the called party) or block prohibited numbers when calling a
    sequence of random or sequential numbers. In either case, these
    provisions indicate Congress’s understanding that an ATDS was not
    22              MARKS V. CRUNCH SAN DIEGO
    provides additional information about Congress’s views on
    the scope of the definition of ATDS. After the FCC issued its
    2015 order, Congress added language to § 227(b)(1)(A)(iii),
    exempting the use of an ATDS to make calls “solely to
    collect a debt owed to or guaranteed by the United States.”
    Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301,
    129 Stat. 584, 588 (codified at 47 U.S.C. § 227(b)(1)(A)(iii)).
    Like the exception allowing the use of an autodialer to make
    calls “with the prior express consent of the called party,” this
    debt collection exception demonstrates that equipment that
    dials from a list of individuals who owe a debt to the United
    States is still an ATDS but is exempted from the TCPA’s
    strictures. Moreover, in amending this section, Congress left
    the definition of ATDS untouched, even though the FCC’s
    prior orders interpreted this definition to include devices that
    could dial numbers from a stored list. We “presume that
    when Congress amends a statute, it is knowledgeable about
    judicial decisions interpreting the prior legislation.” Porter
    v. Bd. of Trs. of Manhattan Beach Unified Sch. Dist.,
    
    307 F.3d 1064
    , 1072 (9th Cir. 2002). Because we infer that
    Congress was aware of the existing definition of ATDS, its
    decision not to amend the statutory definition of ATDS to
    overrule the FCC’s interpretation suggests Congress gave the
    interpretation its tacit approval. See Lorillard v. Pons,
    
    434 U.S. 575
    , 580 (1978) (“Congress is presumed to be aware
    of an administrative or judicial interpretation of a statute and
    to adopt that interpretation when it re-enacts a statute without
    change.”).
    Despite the ambiguity of the statutory definition of
    ATDS, reading the definition “in [its] context and with a view
    limited to dialing wholly random or sequential blocks of numbers, but
    could be configured to dial a curated list.
    MARKS V. CRUNCH SAN DIEGO                            23
    to [its] place in the overall statutory scheme,” Brown &
    Williamson Tobacco 
    Corp., 529 U.S. at 133
    , we conclude that
    the statutory definition of ATDS 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 dial stored numbers automatically.
    Accordingly, we read § 227(a)(1) to provide that the term
    automatic telephone dialing system means equipment which
    has the capacity—(1) to store numbers to be called or (2) to
    produce numbers to be called, using a random or sequential
    number generator—and to dial such numbers.8
    We also reject Crunch’s argument that a device cannot
    qualify as an ATDS unless it is fully automatic, meaning that
    it must operate without any human intervention whatsoever.
    By referring to the relevant device as an “automatic telephone
    dialing system,” Congress made clear that it was targeting
    equipment that could engage in automatic dialing, rather than
    equipment that operated without any human oversight or
    8
    Therefore, we decline to follow the Third Circuit’s unreasoned
    assumption that a device must be able to generate random or sequential
    numbers in order to qualify as an ATDS. Dominguez ex rel. Himself v.
    Yahoo, Inc., 
    894 F.3d 116
    , 120 (3d Cir. 2018) (stating, without
    explanation, that the plaintiff’s claims against Yahoo failed because he
    “cannot point to any evidence that creates a genuine dispute of fact as to
    whether [Yahoo’s device] had the present capacity to function as an
    autodialer by generating random or sequential telephone numbers and
    dialing those numbers”). In making this assumption, the Third Circuit
    failed to resolve the linguistic problem it identified in an unpublished
    opinion in the same case, where it acknowledged that “it is unclear how
    a number can be stored (as opposed to produced) using ‘a random or
    sequential number generator.’” Dominguez v. Yahoo, Inc., 629 F. App’x
    369, 372 n.1 (3d Cir. 2015). Because the Third Circuit merely avoided the
    interpretive questions raised by the statutory definition of ATDS, its
    published opinion is unpersuasive.
    24            MARKS V. CRUNCH SAN DIEGO
    control. 47 U.S.C. § 227(a)(1) (emphasis added); see ACA
    
    Int’l, 885 F.3d at 703
    (“‘[A]uto’ in autodialer—or,
    equivalently, ‘automatic’ in ‘automatic telephone dialing
    system,’ 47 U.S.C. § 227(a)(1)—would seem to envision non-
    manual dialing of telephone numbers.”). Common sense
    indicates that human intervention of some sort is required
    before an autodialer can begin making calls, whether turning
    on the machine or initiating its functions. Congress was
    clearly aware that, at the very least, a human has to flip the
    switch on an ATDS. See The Automated Telephone
    Consumer Protection Act of 1991, Hearing Before the
    Subcomm. on Commc’ns of the Comm. on Commerce, Sci.,
    and Transp., 102nd Cong. 15 (1991) (statement of Robert
    Bulmash, President, Private Citizen, Inc.) (describing a pitch
    for autodialers in a telemarketing magazine as stating: “You
    come home from work[, and] turn on the machine, just like
    turning on a radio.”). Crunch does not dispute that the
    Textmunication system dials numbers automatically, and
    therefore it has the automatic dialing function necessary to
    qualify as an ATDS, even though humans, rather than
    machines, are needed to add phone numbers to the
    Textmunication platform.
    D
    Because we read § 227(a)(1) to provide that the term
    “automatic telephone dialing system” means equipment
    which has the capacity—(1) to store numbers to be called or
    (2) to produce numbers to be called, using a random or
    sequential number generator—and to dial such numbers
    automatically (even if the system must be turned on or
    triggered by a person), we conclude there is a genuine issue
    of material fact as to whether the Textmunication system is
    an ATDS. The evidence in the record shows that the
    MARKS V. CRUNCH SAN DIEGO                               25
    Textmunication system stores numbers and dials them
    automatically to send text messages to a stored list of phone
    numbers as part of scheduled campaigns. This is sufficient to
    survive summary judgment.9 Because the district court did
    not have the benefit of ACA International or our construction
    of the definition of ATDS, we vacate the district court’s
    ruling and remand it for further proceedings.10 Each party
    shall bear its own costs on appeal.
    VACATED AND REMANDED.
    9
    Because we vacate the district court’s decision on this ground, we
    decline the reach the question whether the device needs to have the current
    capacity to perform the required functions or just the potential capacity to
    do so. Cf. Meyer v. Portfolio Recovery Assocs. LLC, 
    707 F.3d 1036
    , 1043
    (9th Cir. 2012); 
    Satterfield, 569 F.3d at 951
    .
    10
    We also vacate the district court’s dismissal of Crunch’s motion to
    exclude Hansen’s declaration as moot. The district court based its ruling
    on its conclusion that there was no dispute of material fact as to whether
    the Textmunication system was an ATDS, and Hansen’s declaration could
    not help create one. To the extent Hansen’s declaration addresses whether
    the Textmunication system calls automatically from a stored list, it is
    relevant to the question whether the system qualifies as an ATDS.
    We DENY Marks’s motion for judicial notice of two newspaper
    articles. We “may judicially notice a fact that is not subject to reasonable
    dispute because it: (1) is generally known within the trial court’s territorial
    jurisdiction; or (2) can be accurately and readily determined from sources
    whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
    Because Marks has not pointed to any judicially noticeable facts in these
    articles, we decline to take judicial notice.