[D]efendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires. This seems like a lot of calls to me, and I cannot agree that the pattern is so insubstantial that it fails as a matter of law. Contrary to defendant’s assertion that “no calls were made continuously on the same day” Doc. #20 at 13, the call log attached to the complaint shows multiple days when more than one call was made: three calls on February 17, 2015, four calls on February 26, two calls on February 28, three calls on March 2, and then two calls each on March 3, 4, 6, 9, 10, and 11. Doc. #1-1 at 26. Even though the calls did not occur at odd hours and there are no allegations of any abusive comments made by defendant during these calls, it is far from implausible to conclude on the basis of the frequency and pattern of calls that plaintiff could prove an intent to annoy, abuse, or harass. See, e.g., Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149, 1160-61 (N.D. Cal. 2007) (granting summary judgment for plaintiff where defendant made 54 calls over a span of six months); Kloth-Zanard v. Bank of America, 2016 WL 287020, at *3 (D. Conn. 2016) (104 telephone calls over 15 months sufficed for a harassment claim under § 1692d); see also Allen v. Bank of Am., N.A., 2012 WL 5412654, at *8 (N.D. Ill. 2012) (discussing standards to evaluate a § 1692d claim on the basis of volume and pattern of calls and whether a plaintiff has asked the collection agency to stop). There is enough here for the complaint to survive the pleading stage. Defendant misplaces its reliance on Chavious v. CBE Group, Inc., 2012 WL 113509 2012), because that case involved repeated calls to a consumer who—unlike plaintiff in this case—could not be reached or had not told the debt collector to stop calling. Id. at *2-3. Moreover, as Chavious itself notes, “the caller’s intent is often a jury question,” id. at 2, and it would certainly not be appropriate for me at the initial pleading stage to conclude that plaintiff’s allegations of 29 calls over a period of 24 days is insufficient as a matter of law. Plaintiff has alleged enough facts to state plausible grounds from relief for his claim of annoyance, harassment, and abuse under 15 U.S.C. § 1692d. Accordingly, I will deny defendant’s motion for judgment on the pleadings with respect to plaintiff’s FDCPA claim.
Plaintiff argues that the TCPA applies because he received calls by means of a wireless Internet network in his home. Doc. #21 at 10. But there is no support in the text of the TCPA for plaintiff’s argument that a call received using a wireless Internet communication is the same as a call made to his cellphone. It is true that § 227(b)(1)(A)(iii) also extends to telephone calls that are made to “any service for which the called party is charged for the call.” But plaintiff does not allege that any Internet-based system that he may have used at his home resulted in a charge to him for each call that he received from defendant. See Klein v. Commerce Energy, Inc., 2017 WL 2672290, at *10-13 (W.D. Pa. 2017) (§ 227(b)(1)(A)(iii) does not apply to automatic dialing system calls made to someone who received calls via Voice-over-Internet Protocol system absent evidence that the called party was charged for the call). Moreover, to the extent that plaintiff contends that the TCPA applies here merely because the calls were made to his residence, this argument also fails, because it ignores the text of the statute that places no such limitation on the use of an automatic dialing system to place calls to a residence. Section 227(b)(1)(A) does not refer at all to calls that are made to a residence. Although the next subsection of the statute—§ 227(b)(1)(B)—specifically applies to telephone calls that are made to a residence, its scope is limited only to the use of telephone calls made by means of a prerecorded voice message, as distinct from telephone calls made by use of an automated dialing system. Plaintiff has not alleged that defendant used a prerecorded voice message to call him at his home. It is true that the legislative history suggests the general intent of Congress to protect the privacy rights of residential telephone customers. See Bonime v. Avaya, Inc., 547 F.3d 497, 499 (2d Cir. 2008). But legislative history cannot trump the clear words of a statute. See Fed. Hous. Fin. Agency v. UBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013). The clear words of the TCPA do not extend to the use of an automatic dialing system (as distinct from the use of a prerecorded voice message) to place a telephone call to a residence. Accordingly, I will dismiss plaintiff’s TCPA claim