In Rhinehart v. Diversified Central, Inc., 2018 WL 372312, at *10 (N.D.Ala., 2018), Judge Hopkins dismissed a TCPA claim and found that an FDCPA claim failed to state facts sufficient to constitute a cause of action.
Note that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number” is a violation of the statute. 115 U.S.C. § 1692d(5). But that is not what the Plaintiff is alleging. She seems, instead, to be alleging that it is a violation of the statute to “us[e] an automatic telephone dialing system” to call her without her consent. It is not. First, as noted above, no facts are pleaded which plausibly establish that an automatic telephone dialing system was used. Second, the Plaintiff has failed to designate any portion of the FDCPA which prohibits the use of such systems. Finally, “[i]ntrusive and unwanted phone calls are not necessarily abusive, deceptive, and unfair debt collection practice” under the FDCPA. Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1226 (S.D. Fla. 2014) (Ungaro, J.).  The Plaintiff alleges that 34 separate calls were made to her cell phone between December 27, 2016, and March 2, 2017–a period of 65 days. That is an average of about one call every two days. The Plaintiff does not allege that she answered any of these calls, the content of any messages which were left, or that, before any of them were made, she asked that they be discontinued.10 On these facts, the Court holds that the Plaintiff has not plausibly pled that the calls were made to harass, oppress, or abuse the Plaintiff. See, Lardner, 17 F. Supp. 3d at 1225 (simply calling plaintiff 126 times over the course of seven months is not enough to violate the FDCPA where there was no evidence of egregious or harassing conduct). The Plaintiff has provided no authority to the contrary.