In Daniels v. ComUnity Lending, Inc., 2015 WL 541299 (S.D.Cal. 2015), Judge Hayes properly analyzed the distinction between the TCPA’s regulation of cellular and residential lines.
The Moving Defendants contend that Plaintiffs have failed to state a violation of the TCPA for making calls to Plaintiffs’ residential telephone lines because the Moving Defendants had an established business relationship with Plaintiffs, namely, rights to collect payment on Plaintiffs’ deed of trust. The Moving Defendants contend that Plaintiffs’ conclusory allegation that they had no business relationship with the Moving Defendants fails to state a claim. The Moving Defendants contend that Plaintiffs have failed to state a violation of the TCPA for making calls to Plaintiffs’ cellular telephone lines because they have failed to allege facts showing that calls placed by the Moving Defendants were random. Plaintiffs oppose dismissal of their TCPA claim and repeat the TCPA allegations contained in the Fourth AC. The Fourth AC alleges that Defendants violated the TCPA by making repeated phone calls to Plaintiffs residential and cellular phone lines using an automated system, and leaving “random and generic and impersonal texted [sic] messages” and “prerecorded voice calls .” (ECF No. 97 at 17). The TCPA contains separate provisions for calls made to residential telephone lines and calls made to wireless telephone lines. See 47 U.S.C. § 227(b)(1)(B); 47 U.S.C. § 227(b)(1) (A)(iii).. ..Residential Telephone Lines. . . .The prohibition relating to residential telephone lines contains express exceptions for certain calls. See 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 commercial purposes other than unsolicited advertisements and telephone solicitations.” Mashiri v. Ocwen Loan Servicing, LLC, No. 12–cv–02838–L–MDD, 2013 WL 5797584, at *3 (S.D.Cal. Oct. 28, 2013) (citing 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)). This Court has determined that, “[t]o the extent the [Fourth] Amended Complaint alleges that Defendants violated the TCPA by placing calls to Plaintiffs’ residential telephone number(s), the [Fourth] Amended Complaint fails to adequately allege facts to support the conclusion that these calls are not exempted from the TCPA.” (ECF No. 60 at 8–9). The Court need not accept as true the conclusory allegation that Defendants have no business relationship with Plaintiffs. Iqbal, 556 U.S. at 678. To the extent Plaintiffs draw this conclusion from the allegation that Defendant Bank of America forged and fraudulently recorded the deed of trust, Plaintiffs fail to allege fraud with the particularity required by Rule 9(b). Swartz, 476 F.3d at 764 (stating that Rule 9(b) “requires … an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations”). . . .b. Cellular Telephone Service. . . .“There 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. 2:13cv843, 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.” Mashiri, 2013 WL 5797584, at *4 (quotation omitted). The elements of a claim under the TCPA for calls made to a cellular phone are that (a) defendant made the call (b) to any telephone number assigned to a cellular telephone service, and (c) the call was made using any automatic telephone dialing system or an artificial or prerecorded voice. See 47 U.S.C. § 227(b)(1)(A) (iii)…I. Automatic Telephone Dialing System…The TCPA defines an automatic telephone dialing system as “equipment which has the capacity … to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers.” 47 U.S.C. § 227(a)(1). This Court has determined that, “[b]ased upon the allegations of the [Fourth] Amended Complaint, Bank of America, N.A.’s alleged calls to Plaintiffs do not appear to have been ‘random,’ 47 U.S.C. § 227(a)(1); instead, the calls are alleged to be directed specifically toward Plaintiffs. Accordingly, the [Fourth] Amended Complaint fails to plausibly allege facts to support the conclusion that any Defendant made a call to Plaintiffs’ cellular telephone number using an automatic telephone dialing system.” (ECF No. 60 at 9) (citing Ibey v. Taco Bell Corp., 12cv583–H–WVG, 2012 WL 2401972, at *3 (S.D. Cal. June 18, 2012) and Freidman v. Massage Envy Franchising, LLC, 12cv2962–L–RBB, 2013 WL 3026641, at *2 (S.D. Cal. June 13, 2013))…II. Artificial Or Prerecorded Voice….The Fourth AC alleges that calls to Plaintiffs cellular telephones included prerecorded voice calls. However, the Fourth AC alleges no facts to make this allegation plausible. Iqbal, 556 U.S. 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).