Well the Marks case just got even bigger somehow.

After the extreme position taken by the Ninth Circuit Court of Appeal two weeks ago the Federal Communications Commission (“FCC”) has decided to re-open the comment period to allow the public to weigh in on the scope of the Telephone Consumer Protection Act (“TCPA”), including the meaning of the phrase automated telephone dialing system. (“ATDS”).

As the Baron deftly explained last week, Marks reads the TCPA’s definition of ATDS so as to include any dialer that has the ability to store numbers and dial them from a list without human intervention. Although Marks’ lead counsel argues that Marks merely tracks previous FCC enactments, Marks is actually a clear departure from existing legal jurisprudence and a real oddball of a ruling in a number of respects.

In light of Marks, however, the FCC is now seeking further comment on “what constitutes an ‘automatic telephone dialing system.'”  The FCC’s Public Notice (linked above) notes that Marks found the definition to be ambiguous and went on to “interpret[] 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.”