Might v. Capital One Bank (USA)

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Motion to Dismiss filed by Defendant Capital One Bank (USA), N.A. (“Capital One”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 18). Plaintiff responded in opposition to the motion. Having considered the parties' submissions, the Court finds as follows.

         Under Rule 12(b)(6), the Court must “assess whether the plaintiff's complaint alone is sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10^th Cir. 2003)(quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10^thCir. 1991)). The Court must presume Plaintiff's factual allegations are true but need not accept conclusory allegations.

         In his First Amended Complaint Plaintiff Might alleges:

10. Defendant placed collection calls to Plaintiff from phone numbers including, but not limited to (800) 955-6600.

11. Per its prior business practices, Defendant's calls were placed with an automated telephone dialing system (“auto-dialer”).

12. Defendant placed collection calls to Plaintiff's cellular telephone with equipment that has the capacity to store or produce phone numbers using a random or sequential number generator and has the ability to call those numbers.

13. Sophisticated debt collectors, such as Defendant, require sophisticated phone systems that are capable of storing large amounts of phone numbers and data regarding each phone number, assuring that their employee debt collection agents are being fully utilized, managing the large numbers of debt collection calls made during each day, and keeping track of each call as well as the performance and outcome of each call for future collection purposes.

         Doc. No. 16, ¶ 10-13. Plaintiff further alleges that on January 5, 2018, he spoke with a woman at 800-955-6600 and asked Defendant to cease contacting his cellular telephone.^[1]Doc. No. 16, ¶ 17. Despite Plaintiff's request that no additional calls be placed to his cell phone, Plaintiff asserts that in total he received 213 calls, which were placed as many as four times per day, seven days a week. No. voicemail messages were left for Plaintiff from the numbers he believes were associated with Capital One.

         Defendant seeks dismissal of Plaintiff's Amended Complaint arguing that he fails to allege a cognizable claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., which prohibits use of an automatic telephone dialing system (“ATDS”) or a prerecorded voice to place calls to a cellular telephone without the called party's prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii). Stating a claim under the TCPA requires that Plaintiff allege (1) that defendant called the plaintiff's cellular telephone; (2) using an automatic telephone dialing system or an artificial or prerecorded voice; (3) without plaintiff's prior express consent. See Asher v. Quicken Loans, No. 2:17-cv-1203, 2019 WL 131854, *1 (D. Utah Jan. 8, 2019). Plaintiff does not allege that Defendant placed calls using an artificial or prerecorded voice, relying on Defendant's alleged use of an automatic telephone dialing system (“ATDS”). Defendant Capital One argues that Plaintiff fails to allege sufficient facts in support of his contention that Defendant used an ATDS, arguing in part that because the calls were collection telephone calls, they could not have been placed using at ATDS and that recent changes in the law impact Plaintiff's ability to proceed with this action. In essence, “[t]he parties' dispute can be reduced to the question whether a predictive dialing device that calls telephone numbers from a stored list of numbers-rather than having generated those numbers either randomly or sequentially-satisfies that statutory definition of ATDS.” Pinkus v. Sirius XM Radio, Inc., 319 F.Supp.3d 927, 937 (N.D. Ill. 2018). Defendant contends it does not, Plaintiff argues to the contrary.

         The TCPA defines at 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 Act gives the Federal Communications Commission (“FCC”) the authority to promulgate implementing regulations. Id. § 227(b)(2). As is relevant here, in 2003, the FCC promulgated regulations to define an ATDS to include “predictive dialers, ” that is “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (2003) Order”), 68 Fed. Reg. 44144, 44161 (July 25, 2003)(footnote omitted). The Order indicated that the term “ATDS” included numbers randomly generated and calls based on a given set of numbers. Id. at 44161. (“[T]o exclude from these restrictions equipment that use predictive dialing software from the definition of ‘automated telephone dialing equipment' simply because it relies on a given set of numbers would lead to an unintended result.”). Id.

         In 2008, the FCC affirmed the 2003 Order via Declaratory Ruling. See In re Rules & Regulations Implementing Telephone Consumer Prot. Act of 1991, 73 Fed. Reg. 6041 Feb. 1, 2008). (“In this document the Commission addresses a Petition for Expediated Clarification and Declaratory Ruling filed by ACA International (ACA).”) Therein the Commission reiterated “that the plain language of § 227(b)(1)(A)(iii) of the Communications Act prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the party called.” Id. at 6042. The Commission noted its prior determination that a predictive dialer, used to call specific numbers from established customers, meets the definition of autodialer. Id.

         In 2015, the Commission issued another Declaratory Ruling, affirming its prior statement 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.” FCC 15-72 at 11-12. The Commission reiterated that predictive dialers are also autodialers. Id. The Commission's interpretation was challenged in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the results of which impact this Court's decision on the instant motion, although the exact impact is subject to much debate, which need not be decided at this stage of the litigation.

         In ACA, the court invalidated the Declaratory Ruling's interpretation of the term ATDS, explaining that the FCC's 2015 description of an autodialer contradicted its prior rulings. The court explained either ...