In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded.  First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer:

The TCPA contains separate provisions for calls made to residential telephone lines and calls made to wireless telephone lines. 47 U.S.C. § 227(b)(1)(B); 47 U.S.C. § 227(b)(1)(A)(iii). The prohibition relating to residential telephone lines contains express exceptions for certain calls. 47 U.S.C. § 227(b)(2)(B). The FCC, which has the authority to formulate regulations under the TCPA, has articulated the exemptions for debt collection calls made to residential lines as follows: (1) calls made between parties that have an established business relationship, and (2) calls made for com-mercial purposes other than unsolicited advertisements and telephone solicitations. 47 C.F.R. 64.1200(a)(2) (iii-iv); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8773 ¶ 39 (1992). ¶  Defendant cites to the legislative history of the TCPA to argue that it does not apply to telephone calls made by debt collectors. (Def.’s Mot. 4:7–8; 14–22.) Defendant relies on Shupe v. JPMorgan Chase Bank of Arizona for the proposition that “[t]he FCC has unequivocally stated that calls made solely for the purpose of debt collection are exempt under the TCPA” exceptions. No. CV 11–501–TUC–RCC, 2012 WL 1344786 (D.Ariz. Apr.18, 2012) (citing In re Rules & Regulations Implementing the TCPA, 23 FCC Rcd. 559, 565 ¶ 5 (2008)); (Def.’s Reply 2:24–27; 3:1–2.) However, Defendant fails to distinguish between debt collection calls made to residential phone lines and those made to wireless numbers. The challenged debt collection calls in Shupe were made to a residential telephone number. Here, the Plaintiff alleges that calls were made to his cellular phone. (FAC ¶ 24, 28.) ¶  With respect to wireless telephone calls, the TCPA clearly prohibits making “any call … using any automatic telephone dialing system or artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service …” 47 U.S.C. § 227(b)(1)(A). Defendant points to no authority stating that the statutory exceptions for residential phone calls are also applicable to wireless phone calls. As a matter of fact, “[t]here is no exception for debt collectors in the statute, nor does the statute permit any regulatory agency to make exceptions to the sections applicable to cellular numbers.” Iniguez v. The CBE Group, No. 2:13–cv–00843, 2013 WL 4780785, at *5 (E.D.Cal. Sept.5, 2013). Accordingly, the TCPA “applies to debt collectors and they may be liable for offending calls” made to wireless numbers.   Iniguez, 2013 WL 4780785, at *5 (citing Blair v. CBE Group Inc., No. 13–CV–134–MMA(WVG), 2013 WL 2029155, at *3 (S.D.Cal. May 13, 2013)); Jachimiec v. Regent Asset Management Solutions, N.A., No. 09cv2170–BTM, 2011 WL 2160661 (S.D.Cal. May 26, 2011) (stating that “[d]ebt collectors who make auto-dialed or prerecorded calls to a wireless number are subject to this prohibition”) (citing Robinson v. Midland Funding, LLC, No. 10cv2261 MMA(MDD), U.S. Dist. LEXIS 40107, at *13–14 (S.D.Cal. Apr. 13, 2011)).

Second, Judge Lorenz found that the Plaintiff had adequately pleaded use of an ATDS:

To state a claim under the TCPA for calls made to a cellular phone, a plaintiff must establish that: “Defendant made the call; Plaintiff was charged for the call; and the call was made using any automatic telephone dialing system or an artificial or prerecorded voice.” Knutson v. Reply!, Inc., No. 10–CV–1267, 2011 WL 291076, at *1 (S.D.Cal. Jan. 27, 2011). With respect to the use of an automatic telephone dialing system (“ATDS”), which is defined as equipment with the capacity to store or produce numbers to be called using a random or sequential number generator, “neither section 227(b)(1)(A)(iii) nor Federal Rule of Civil Procedure 8 requires Plaintiff to plead his claim with particularity.” 47 U.S.C. § 227(a)(1); Robinson, 2011 WL 1434919, at *3 (citing Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1172 (N.D.Cal.2010)). Rather, courts consider whether, “read as a whole, the complaint contains sufficient facts to show that it is plausible that Defendants used [an ATDS].” Kramer, 759 F.Supp.2d at 1171. ¶  Here, Defendant Ocwen argues that “the FAC provides no additional facts or details about the calls to support Plaintiff’s conclusion that calls were made by an automatic system.” (Def.’s Mot. 5:14–18.) Although Plaintiff’s allegation that the Defendant “would repeatedly call Plaintiff’s cellular telephone, using an automatic dialing system or artificial/prerecorded voice to initiate the telephone call” seems conclusory on its own, courts have found similarly phrased allegations sufficient to state a claim. (FAC ¶ 24); see e.g., Robinson, 2011 WL 1434919, at *3 (finding that a debtor stated a claim by alleging that calls were made “via an [ATDS] … using ‘an artificial or prerecorded voice’ for which he was charged”); Reyes v. Saxon Mortgage Serv., Inc., No. 09cv1366, 2009 WL 3738177, at *4 (S.D.Cal. Nov.5, 2009) (holding that “frequently made calls to Plaintiff’s cell phone using an [ATDS] … and an artificial or prerecorded voice,” of which the plaintiff bore the expense was a properly plead claim that an ATDS was used). Moreover, read as a whole, Plaintiff’s first amended complaint alleges additional facts that make Defendant’s use of an ATDS more plausible. Similar to the pleading in Reyes, Plaintiff alleges that the Defendant “repeatedly” called his cellular phone using an ATDS “at least twice a day, everyday,” including over 100 times from September 2012 to October 31, 2012. (FAC ¶ 24, 28, 107.) Plaintiff also alleges that Defendant “transmitt[ed] prerecorded or artificial messages” to “initiate” each phone call. (Id. ¶ 24, 107.) Plaintiff further alleges that he incurred charges for each call. (Id.) As such, the Court finds that Plaintiff has sufficiently alleged the ATDS element of a TCPA claim.

Finally, Judge Lorenz held that it was the defendant’s burden, not the plaintiff’s, to plead prior express consent.

Express consent “is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.” Robbins v. Coca–ColaCompany, No. 13–cv–132, 2013 WL 2252646, at *2 (S.D.Cal. May 22, 2013); Shupe, 2012 WL 1344820, at *4; Knutson, 2011 WL 291076, at *1. Creditors must demonstrate that the consumer provided prior express consent because they are in the best position to have records showing such consent. Ryabyshchuk v. Citibank (South Dakota) N.A., No. 11–cv–1236–IEG, 2011 WL 5976239, at *5 (S.D.Cal. Nov.28, 2011) (citing In re Rules and Regulations Implementing the TCPA of 1991, 23 FCC Rcd. 559, 565 (2008)). Thus, arguing that the Plaintiff provided prior express consent is an affirmative defense which does not defeat the elements of Plaintiff’s claim. Reyes, 2009 WL 3738177, at *4. ¶  Defendant cites to a non-controlling case in support of its argument that Plaintiff must allege that calls were made without his consent. (Def.’s Reply 4:1–18) (citing Pugliese v. Prof’l Recovery Serv., Inc., No 09–12262, 2010 WL 2632562, at *7 (E.D.Mich. June 28, 2010)). However, the very next sentence in that opinion clarifies that “[t]he burden of establishing prior consent is on the defendant.” Pugliese, 2010 WL 2632562, at *7. While the FCC notes that prior express consent is present when a consumer gives his or her number to the creditor during the transaction that resulted in the debt, see In re Rules and Regulations Implementing the TCPA of 1991, 23 FCC Rcd. at 564–65, this defense does not trump Plaintiff’s pleading requirements for a TCPA claim. To plead a TCPA claim, Plaintiff needs only to allege two things: (1) that a cellular phone was called; (2) via an ATDS. Robbins, 2013 WL 2252646, at *2 (citing Connelly v. Hilton Grand Vacations Co., LLC, No. 12cv599 JLS, 2012 WL 2129364, at *3 (S.D.Cal. June 11, 2012)). Thus, the issue of whether Plaintiff revoked his con-sent is irrelevant to whether or not Plaintiff has sufficiently pleaded the elements of a TCPA violation.  ¶  In sum, the TCPA applies to debt collection calls made to cellular phones. Plaintiff adequately pleads that an ATDS was used and, given that prior express consent is not an element of a TCPA claim, Plaintiff was not required to plead that such consent was lacking. Accordingly, the Court will deny Defendant’s motion as to Plaintiff’s TCPA cause of action.