In Meyer v. Portfolio Recovery Associates, LLC— F.3d —-, 2012 WL 4840814 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit affirmed a certification of a TCPA class action. Portfolio Recovery Associates, LLC (PRA) appealed the September 14, 2011 district court order granting Jesse Meyer’s motion for a preliminary injunction and provisional class certification. Meyer’s complaint alleged that PRA’s debt collection efforts violated the Telephone Consumer Protection Act ( TCPA), 47 U.S.C. § 227. The district court’s preliminary injunction restrained PRA from using its Avaya Proactive Contact Dialer to place calls to cellular telephone numbers with California area codes that PRA obtained via skip-tracing. The district court limited the provisional class in this case to all persons using a cellular telephone number that “(1) PRA did not obtain either from a creditor or from the Injunctive Class member; and (2) has a California area-code; or (3) where PRA’s records identify the Injunctive Class member as residing in California.” The Court of Appeals affirmed.
The district court limited the provisional class in this case to all persons using a cellular telephone number that “(1) PRA did not obtain either from a creditor or from the Injunctive Class member; and (2) has a California area-code; or (3) where PRA’s records identify the Injunctive Class member as residing in California.” PRA argues that individualized issues of consent should have precluded a finding of typicality or commonality because some debtors might have agreed to be contacted at any telephone number, even telephone numbers obtained after the original trans-action. But the Federal Communications Commission (FCC) issued a declaratory ruling clarifying the re-quirement for consent in the context of the TCPA that defeats PRA’s argument. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int’l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008). Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless telephone number was provided by the con-sumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Id. at 564–65. Thus, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA. . . .
The Court of Appeals also affirmed the grant of an FRCP 23(b)(2) class:
PRA first argues the district court erred by find-ing that Meyer demonstrated a likelihood of success on the merits. We disagree. The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior ex-press consent. 47 U.S.C. § 227(b)(1). The term “automatic telephone dialing system” means”equipment that 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). PRA ar-gues that its dialers do not have the present capacity to store or produce numbers using a random or sequential number generator. As we explained in Satterfield v. Simon & Schuster, Inc ., the clear language of the TCPA”mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’ “ 569 F.3d 946, 951 (9th Cir.2009). PRA’s securities filing shows that PRA uses predictive dialers. PRA does not dispute that its predictive dialers have the capacity described in the TCPA. This is sufficient to determine that PRA used an automatic telephone dialing system. See id. (“[A] system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.”). The FCC further defined “automatic telephone dialing system” to include predictive dialers. See In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14091–93 (July 3, 2003). “[A] predictive dialer is equipment that dials numbers and, when cer-tain computer software is attached, also assists tele-marketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id. at 14091. “As one commenter points out, the evo-lution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective. The basic function of such equipment, however, has not changed—the capacity to dial num-bers without human intervention.” Id. at 14092. PRA’s predictive dialers fall squarely within the FCC’s definition of “automatic telephone dialing system.” PRA argues that the FCC did not have the authority to define predictive dialers as “automatic telephone dialing systems” and that the regulation reflecting this definition is therefore invalid. But PRA did not raise this argument in the district court and it did not argue any exception to the rule that arguments not raised before the district court are waived. Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.2011). We therefore deem this argument waived.