In Bentley v. Bank of America, N.A., — F.Supp.2d —-, 2011 WL 1097452 (S.D.Fla. 2011), Judge Dimitrouleas held that a Plaintiff might be able to state a claims under the TCPA where calls were placed to the Plaintiff’s cell phone, as opposed to the Plaintiff’s land-line. Judge Dimitrouleas found that the ‘established business relationship’ exception to the TCPA prohibition against automated telephone calls did not apply to calls placed to cellular telephones because automated calls to cellular telephones were regulated under a different section of the TCPA. Judge Dimitrouleas explained:
Plaintiff alleges that Defendants violated sections 227(b)(1)(A) & (B) of the TCPA which makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call; (47 U.S.C. § 227(b)(1)(A)) or “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).” 47 U.S.C. § 227(b)(1)(B). ¶ The Eleventh Circuit has noted that the Federal Communications Commission (“FCC”) exempts from the TCPA’s statutory prohibition in 47 U.S.C. § 227(b)(1)(B) “any call ‘made to any person with whom the caller has an established business relationship at the time the call is made[.]’ “ Meadows v. Franklin Collection Serv., Inc., Case No. 10-13474, 2011 WL 479997, at *4 (11th Cir. Feb.11, 2011) (quoting 47 C.F.R. 64 1200(a)(2)(iv)). “The FCC has also clarified that ‘all debt collection circumstances involve a prior or existing business relationship.’ “ Id., (internal citations omitted). As explained above, Plaintiff clearly had an established business relationship with Defendants-borrower and loan servicers-at the time the calls were commenced in 2010, [DE-22, ¶¶ 12, 15, 20, 22; 22-1]; see also Sardinas v. Geithner, 2:10-CVB-501JCM, 2010 WL 2696626, at *3 (D.Nev. July 6, 2010) (dismissing TCPA claim based upon existence of established business relationship with the consumer). As such, to the extent Plaintiff attempts to assert a claim against Defendants under 47 U.S.C. § 227(b)(1)(B) in count III, such a claim is dismissed with prejudice based upon the FCC’s exemption for established business relationships. ¶ In comparison, Defendants have cited to no authority demonstrating that the exemption of section 227(b)(1)(B) for an established business relationship likewise applies to claims brought under section 227(b)(1)(A). In the absence of such authority, and when considering that the exemption appears to only qualify the language of section 227(b)(1)(B), the Court is not persuaded at this time that the exemption similarly applies to section 227(b)(1)(A), Plaintiff alleges that Defendants “used an automatic telephone dialing system or prerecorded or artificial voice to place numerous telephone calls to Plaintiff’s cellular telephone.” [DE-22, ¶ 23]. Plaintiff then proceeds to identify specific dates upon which he purportedly received calls from Defendants. Id. at ¶¶ 28-32. However, nowhere in the Complaint does Plaintiff identify which Defendant made each call, but instead he simply lumps the Defendants together despite that they are separate and distinct legal entities. As such, the Court finds that to the extent Plaintiff attempts to assert a claim against Defendants under 47 U.S .C. § 227(b)(1)(A) in count III, such a claim is dismissed without prejudice for improperly lumping together Defendants such that Defendants do not have fair notice of the precise nature of the violation that is claimed against them.