Court Finds Plaintiff’s ATDS Allegations Sufficient to Move Forward

TCPA Connect

A Telephone Consumer Protection Act (TCPA) plaintiff managed to survive the defendant’s motion to dismiss after the court found sufficient factual allegations in the complaint that the defendant used an automated telephone dialing system (ATDS).

In her Illinois federal court complaint, Freida Zeidel alleged that she received multiple unwanted calls from National Gas & Electric beginning in August 2018. Upon answering one of the calls, Zeidel was “automatically connected” to an operator who identified herself as a representative of National Gas and attempted to sell Zeidel discounted services.

Zeidel claimed she never provided written consent to receive the calls, which also appeared to have been made using spoofed numbers. Her putative class action allegation further claimed that Natural Gas made similar telemarketing calls to other similarly situated individuals, without their consent, using an ATDS in violation of the TCPA.

Natural Gas moved to dismiss on two grounds: first, that Zeidel failed to state a claim and second, that she neglected to plead facts sufficient to allow the court to draw a reasonable inference that National Gas called her cellphone using an ATDS.

U.S. District Judge John Z. Lee disagreed with both arguments.

The plaintiff was not required to include her phone number, the phone number from which the calls came and whether that number is associated with the defendant, what day the calls occurred, or how many calls were made, the court said, noting that decisions in the Northern District of Illinois have taken different approaches as to whether plaintiffs must plead the exact number of calls and their content.

“Here, the Court finds that Zeidel has provided sufficient facts to allow a reasonable inference that National Gas called her at least once, if not multiple times,” Judge Lee wrote. “She has provided a timeframe and details about the content of one such call, which included promotion of National Gas’s services. The additional facts that National Gas requests can be ascertained during discovery; at this preliminary stage, Zeidel’s allegations are sufficient to nudge her claim from merely conceivable to plausible.”

Turning to the question of whether the plaintiff’s ATDS allegations were sufficient, the court again recognized a variety of views on the requirements for pleading a TCPA violation. Some courts allow plaintiffs to merely allege the use of an ATDS as defined in the statute, without supporting facts; others require a plaintiff to present additional facts supporting such an inference, such as a description of the communication’s generic, promotional content or hearing a pause before being connected to an operator.

“Zeidel’s complaint alleges sufficient facts to survive under either standard,” the court said. “Although the complaint does not recite the TCPA’s definition of an ATDS, it also includes further details about the content and nature of the calls, which support a reasonable inference that National Gas used an ATDS to make unauthorized calls to Zeidel and other similarly situated individuals.”

Specifically, the plaintiff alleged that beginning in August 2018, National Gas made “numerous” unsolicited telemarketing calls to her cellphone in violation of the statute, which prohibits making “any call” using an ATDS without the recipient’s prior consent, the court said. Further, Zeidel provided information about the generic, promotional content of the calls, which marketed National Gas’s discounted services, adding that the calls came from two different spoofed numbers, which “also suggest the use of an ATDS.”

“Taken together in the light most favorable to Zeidel, as is required, these facts allow the Court to draw a reasonable inference that National Gas used an ATDS,” the court wrote.

The defendant countered that Zeidel’s allegations only suggested that she was called using a predictive dialer rather than an ATDS, citing to Pinkus v. Sirius XM Radio, Inc., where the court granted the defendant’s motion to dismiss based on the plaintiff’s allegation that he had been automatically connected to an operator after answering a call made using predictive dialing technology.

Judge Lee distinguished Pinkus based on the allegations in Zeidel’s complaint, which alleged that National Gas used an ATDS to call her and others for telemarketing purposes and made no reference to “predictive dialing technology” at all.

“The difference between a predictive dialer and an ATDS is not readily apparent to a recipient of an automated call,” the court said. “Such a determination requires information about the technical details of the device that the defendant used to make the calls—information that the plaintiff lacks prior to discovery. It is for this reason that a plaintiff need not provide specific, technical details about the device at issue at the pleading stage.”

Concluding that Zeidel alleged facts sufficient to claim that National Gas made unauthorized calls to her cellular telephone using an ATDS in violation of the TCPA, the court denied the defendant’s motion to dismiss.

To read the memorandum opinion and order in Zeidel v. National Gas & Electric, LLC, click here.

Why it matters: The Illinois federal court’s decision in Zeidel adds to the ongoing uncertainty surrounding issues related to what constitutes an ATDS under the TCPA, one year after the U.S. Court of Appeals, D.C. Circuit’s decision in ACA International v. FCC. While the court took the time to distinguish an ATDS from a predictive dialer (explaining that some predictive dialers do not qualify as an ATDS under the TCPA “because they lack the capacity to randomly or sequentially generate numbers to dial”), it found that the plaintiff alleged sufficient facts that the content of the allegedly spoofed calls was generic and promotional.