In Reed v. Quicken Loans, Inc., the Northern District of Texas dismissed a TCPA claim because the complaint did not adequately allege that the plaintiff was called or texted using an automatic telephone dialing system or “ATDS.” In Reed, the plaintiff alleged that the defendant had sent him six unsolicited text messages and placed eight unsolicited phone calls to him with voicemail messages. Additionally, plaintiff had alleged that defendant “violated the [TCPA] through its barrage of calls ... [and] numerous automated text messages to Plaintiff’s private cell phone ... after being expressly instructed in writing to cease all such communications.”
Despite recognizing the difficulty a plaintiff faces in knowing the type of calling system used without the benefit of discovery, the Court still found that the plaintiff failed to adequately plead the use of an ATDS. Although the plaintiff had alleged that the text messages were “automated,” this allegation did not indicate that the text messages or phone calls were “placed with an ATDS that randomly or sequentially generated his number.” Consequently, the Court dismissed Plaintiff’s TCPA claim.
In DeCapua v. Metro. Prop. And Casualty Ins. Co, the District of Rhode Island concluded that a TCPA claim should be dismissed because the texting system did not qualify as an ATDS. The plaintiff alleged that the equipment at issue was an ATDS and was used by the defendant to send thousands of spam texts in violation of the TCPA. He contended that the defendant’s system “store[d] numbers generated randomly or sequentially using basic features of Microsoft Excel, a common software program used, among other things, to store data and interact with external platforms.”
Relying on summary judgment decisions in other cases analyzing the same equipment, the Court held that because human intervention is required at the point in time at which the number is dialed, “the system was not an ATDS because it could not send the spam texts in issue without human intervention.” Although this decision was reached at the pleading stage, the plaintiff had filed a detailed Complaint that permitted the Court to reach the same conclusions reached by other courts under Rule 12(b)(6).
In Perrong v. Liberty Power Corp. L.L.C., the District of Delaware, following the lead of the Fourth and Ninth Circuit Courts of Appeals, held that the 2015 government-backed debt collection exemption of the TCPA violated the First Amendment. Assessing the statute with strict scrutiny, the District of Delaware found the exemption to be fatally under-inclusive as it allows a substantial number of intrusive calls, undercutting the asserted goals of the TCPA. As a remedy, similar to the Fourth and Ninth Circuit Courts of Appeals, the Court opted to sever the exemption and leave the remainder of the TCPA intact. According to the Court, the version of the TCPA without the debt-collection exemption has been upheld as a valid time, place, or manner restriction by several courts throughout the country. The Court was not persuaded that removing the exemption would somehow render unconstitutional a statute that had been repeatedly upheld as constitutional in its previous form.