Judge Denies MTD in Case Seeking to Invoke TCPA’s ATDS Provisions Were Invalid

On the same day, in the same District, two different judges issued opposing rulings on whether the Telephone Consumer Protection Act was unconstitutional between 2015 and 2020. The ruling in Hussain v. Sullivan Buick-Cadillac-GMS Truck, Inc. has already been discussed, and joined two other courts in determining that the statute was unconstitutional. But another judge in the Middle District of Florida found the defendant’s attempt to make the same argument unpersuasive and denied a motion to dismiss.

A copy of the ruling in the case of Abramson v. Federal Insurance Company and Bay Area Health can be accessed by clicking here.

The plaintiff received a phone call from one of the defendants. When the call was answered, a pre-recorded message was played. The plaintiff responded to the prompts in the message and was connected to a representative of the defendant, who tried to sell the plaintiff health insurance. The plaintiff then filed a class-action lawsuit, alleging he did not consent to receive calls from the defendant and accusing the defendants of violating the TCPA.

The defendants attempted to use the same argument that had been successful in three other cases, including one in the same jurisdiction — that the Supreme Court’s ruling in Barr v. American Association of Political Consultants rendered the TCPA unconstitutional for the five years in which an exemption was included in the statute. But Judge Tom Barber of the District Court for the Middle District of Florida became the first judge to reject that argument.

Judge Barber was succinct in his denying the motion to dismiss. “The Court finds this argument unpersuasive,” he wrote. “Although Federal Insurance cites two cases supporting its arguments, the vast majority of cases this Court has reviewed conclude that parties may continue to bring claims under the portions of § 227(b) unaltered by AAPC.”

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