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Judge Denies MTD in TCPA Case Over Collection Calls Allegedly Made via ATDS

A District Court judge in Oklahoma has denied a defendant’s motion to dismiss after it was sued for allegedly violating the Telephone Consumer Protection Act by making collection calls using an automated telephone dialing system to the plaintiff’s cell phone after consent to do so had been revoked.

A copy of the ruling in the case of Hill v. USAA Savings Bank can be accessed by clicking here.

The plaintiff revoked consent to be contacted by the defendant. However, the plaintiff alleges the defendant continued to call, up to seven times a day and six days per week for five months after consent was revoked. All told, the defendant is accused of making 119 automated calls to the plaintiff’s cell phone.

The defendant argued the technology it used to place the calls does not meet the definition of an ATDS under the TCPA, especially following the ruling in ACA International v. FCC. But Judge Scott Palk of the District Court for the Western District of Oklahoma ruled that discovery was needed to determine whether an ATDS was used to make the calls. Because the plaintiff alleged the defendant’s technology “has the capacity to generate and dial random or sequential numbers” as well as additional factors — such as the frequency of calls, the unpredictability of the calls, and that the calls would allegedly disconnect when the plaintiff did not answer the phone and the call was sent to voicemail — factual development of the arguments is needed, Judge Palk wrote in denying the motion to dismiss.

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