• by Wendy Davis  @wendyndavis, October 30, 2018

Handing another defeat to Crunch Fitness, a federal appeals court has refused to reconsider its recent ruling that the company may have violated a robo-texting law by sending SMS messages to a gym member.

A three-judge panel of the 9th Circuit Court of Appeals wrote in a brief order issued Tuesday that none of the circuit's judges requested a vote on whether to rehear the case. That panel ruled earlier this month that the gym member Jordan Marks was entitled to proceed with a class-action complaint alleging that Crunch violated the Telephone Consumer Protection Act by sending him three text messages in an 11-month period. That law prohibits companies from using automated dialers to send SMS messages to consumers without their permission.

Crunch argued there was no proof it had used an automated dialer to send the messages. U.S. District Court Judge Cynthia Bashant in the Southern District of California agreed with Crunch and dismissed the case. She said an automated dialer must have the ability to generate random or sequential phone numbers, as opposed to storing a list of numbers.

Earlier this month, the appellate judges reversed Bashant's decision, writing that her definition of autodialer was too narrow. The appeals judges defined autodialers as devices that store numbers to be called, regardless of whether the numbers were generated randomly or by a sequential generator.

The appellate panel said Crunch's texting system "dials numbers automatically," and therefore potentially meets the definition of autodialer. But the judges stopped short of ruling either that Crunch's system is definitively an autodialer, or that Crunch violated the law. Instead, they said they sent the case back to the district court for further proceedings.

Crunch -- backed by radio company Sirius XM and The Association of Credit and Collection Professionals -- then asked the 9th Circuit to reconsider the ruling. They argued in separate sets of legal papers hat the appellate judges interpreted the concept of robo-texting too broadly.

“The panel's interpretation disregards the purposes of the TCPA's [autodialer] provisions,” Sirius XM wrote in a friend-of-the-court brief filed this month. Sirius XM is facing separate lawsuits alleging it violated the Telephone Consumer Protection Act.

The company added that random dialing “allows callers to reach and tie up specialized numbers -- emergency rooms, hospital rooms, unlisted pagers, fire departments, and the like,” while sequential dialing “allows callers to reach, tie up, and overwhelm all of the telephone lines in a hospital, a police station, a fire department, or even an entire cell phone network.”

Those problems don't occur with automated dialing from a list of numbers, Sirius argues. “Dialers that rely on prepared lists reach only the numbers whom the caller deliberately chooses to call -- and nobody deliberately calls a police station or a fire department or a hospital room to hawk wares,” the radio company wrote.

The panel's decision regarding Crunch conflicts with a recent ruling issued by a different appellate court -- the 3rd Circuit Court of Appeals -- which recently sided with Yahoo in a similar dispute over whether its texting system is an autodialer.

The 3rd Circuit's ruling stemmed from a 2013 lawsuit by Philadelphia resident Bill Dominguez, who said Yahoo sent him more than 27,000 text messages that were meant for the phone's previous owner.

The appellate judges in that case said systems are only autodialers if they can generate and call random or sequential numbers.