United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
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.
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 (10th
Cir. 2003)(quoting Miller v. Glanz, 948 F.2d 1562,
1565 (10thCir. 1991)). The Court must presume
Plaintiff's factual allegations are true but need not
accept conclusory allegations.
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
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.
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.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
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.
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.
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.
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.
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 ...