In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness.

Defendant contends that Plaintiff’s sole allegation regarding Defendant’s use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the capacity to dial sequentially or randomly and at all times dialed without human intervention.” . . .According to one court, “the vast majority of courts to have considered the issue have found that ‘a bare allegation that defendants used an ATDS is not enough.’ ” Snyder v. Perry, No. 14-2090, 2015 WL 1262591, at *8 (E.D.N.Y. Mar. 18, 2015) (quoting Baranski v. NCO Fin. Sys., Inc., No. 13-6349, 2014 WL 1155304, at *6 (E.D.N.Y. Mar. 21, 2014) (dismissing the complaint after holding that “[p]laintiffs must do more than simply parrot the statutory language” defining ATDS)). Defendant cites more than 10 other cases with similar holdings. See, e.g., Aikens v. Synchrony Financial, No. 15-10058, 2015 WL 5818911, at *4 (E.D. Mich. July 31, 2015) (Morris, M.J.) (threadbare facts alleged by plaintiff were insufficient to support inference plaintiff was called using an ATDS). . . A capacity to produce telephone numbers randomly or sequentially is not a necessary capacity of an ATDS if the system (1) stores then (2) dials numbers (3) without human intervention. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02–278, Report and Order, 27 FCC Rcd. 15391, 15392 n.5 (2012) (the “2012 TCPA Order”); Glauser v. GroupMe, Inc., 2015 WL 475111, at *6 (N.D. Cal. Feb. 4, 2015) (citing FCC’s 2008 and 2012 TCPA Orders and concluding that “while the capacity for random/sequential dialing is not required for TCPA liability, the capacity to dial numbers without human intervention is required”); Sterk v. Path, Inc., 46 F. Supp. 3d 813, 818 (N.D. Ill. 2014) (collecting cases and stating that “the [FCC] has issued decisions stating that an ATDS may include equipment that automatically dials numbers from a stored list without human intervention, even when the equipment lacks the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.”). . . Plaintiff further alleges that when he did not answer Defendant’s calls, Defendant left voicemail messages consisting of screeching and beeping sounds, lasting approximately thirty seconds. (Amended Complaint ¶¶ 12-13) Based on these allegations, Plaintiff argues that it can be plausibly determined that Defendant obtained Plaintiff’s cell phone number and plugged Plaintiff’s cell phone number into Defendant’s automated telephone system, which then stored and automatically dialed Plaintiff’s number, repeatedly. Plaintiff also alleges Defendant did the same to other consumers, as evidenced by their complaints online. (Amended Complaint ¶ 19). . .As Plaintiff notes, the Aikens court granted the defendant’s motion to dismiss for plaintiff’s failure to allege use of an ATDS because that plaintiff “provided no factual allegations regarding the nature andcharacter of the calls[.]” Aikens, 2015 WL 5818911, at *4 (emphases added). Plaintiff asserts that he alleges sufficient facts regarding the nature and character of the calls for the Court to infer that Defendant’s calls were automated because Plaintiff alleges he either: (a) answered the call, no person spoke to him, and he heard nothing, or (b) did not answer the call and received a robotic, automated screeching and beeping voicemail. Plainitff argues such allegations establish that it was plausible Defendant utilized an ATDS on the calls, thereby meeting the bar to state a claim under Rule 12(b)(6). . . The Court finds that Plaintiff has specifically pled that he either: (a) answered the call, no person spoke to him, and he heard nothing, or (b) did not answer the call and received a robotic, automated screeching and beeping voicemail (Amended Complaint ¶¶ 11-13). The Court further finds that Plaintiff sufficiently alleged facts to support a finding that Defendant used an ATDS when calling Plaintiff’s cell phone.

The District Court found, however, that the Plaintiff had not pleaded enough facts to demonstrate willfulness.

Defendant next asserts that intent under the TCPA“does not require any malicious or wanton conduct,” but it does require that the Plaintiff plead and prove “ ‘knowing’ conduct.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011) (citation omitted). Defendant argues it is not sufficient for Plaintiff merely to allege that Defendant intended to place calls to his cellular phone number. Defendant argues that Plaintiff must plead that Defendant knew or should have known that placing calls to Plaintiff was itself a violation of the TCPA. See, e.g., Harris v.World Fin. Network Nat’l Bank, 867 F. Supp. 2d 888, 895 (E.D. Mich. 2012) (rejecting plaintiff’s argument that “he must only demonstrate that [d]efendants intended to use the autodialer to place the calls” to prove willfulness); Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 899 (W.D. Tex. 2001) (“The Federal Communications Commission has interpreted ‘willful or knowing’ under the [TCPA], as not requiring bad faith, but only that the person have reason to know, or should have known, that his conduct would violate the statute.”). Defendant asserts Plaintiff does not allege any facts to show that Defendant: (a) knew it was calling Plaintiff without his consent, (b) knew the calls were not made for emergency purposes, and/or (c) was aware that the alleged calls were made in violation of the TCPA.  Plaintiff counters that Defendant continues to ignore the factual allegations of Plaintiff’s complaint. Plaintiff states that “the Court [should] adopt [ ] the more common interpretation that ‘willfully’ or ‘knowingly’ simply requires that the act be intentional or volitional, as opposed to inadvertent, and not that defendant must have known that the conduct would violate the statute.” Bridgeview Health Care Ctr. Ltd.v. Clark, 2013 WL 1154206, at *7 (N.D. Ill. Mar. 19, 2013). Plaintiff asserts that willful and knowing conduct can be inferred from his allegations that: (1) he has never had any business with Defendant and has never provided Defendant his cell phone number (Amended Complaint ¶ 17), (2) despite the lack of any relationship with Plaintiff, Defendant placed numerous calls to Plaintiff’s cell phone (Amended Complaint ¶ 16), and (3) Defendant knows about the problem of its errant calls but has declined to fix it (Amended Complaint ¶ 19), as evidenced by, for example, an online consumer complaint from November 15, 2007 (“Was told eventually [by Onstar] that the calls would stop, but, of course, they did not.”). Plaintiff contends that his allegations raise a plausible claim that Defendant knew it operated an ATDS that was errantly calling Plaintiff’s and other consumers’ cell phone numbers.   Defendant also contends that Plaintiff’s allegations that “phone calls were made without the prior express consent of [p]laintiff…and were not made for emergency purposes,” such that the alleged calls “constitute[ ] a willful violation of the TCPA” are not sufficient to satisfy Iqbal and Twombly. (Amended Complaint ¶¶ 40, 42) Defendant argues Plaintiff must plead at least that Defendant knew it was calling the wrong number. See Harris, 867 F. Supp. 2d at 892 (holding that prior to plaintiff notifying the defendants, the defendants’ conduct could not be deemed willful or knowing because they were unaware they were calling the wrong number). In this case, Defendant argues, Plaintiff has not alleged that he notified Defendant that Defendant was calling the wrong number—Plaintiff’s number—and that after that notice, Defendant continued to place unauthorized calls to Plaintiff. Plaintiff does not specifically address this issue; rather, Plaintiff generally responds that Defendant knew it was operating an ATDS that was calling Plaintiff and other consumers without permission. Plaintiff cites two cases, but one of them actually supports Defendant’s argument that it has to be aware that Plaintiff did not consent to the calls in order to have willfully or knowingly violated the TCPA (i.e., Plaintiff has to provide notice to Defendant that Defendant was calling the wrong number or did not have permission to call him). Plaintiff cites Echevvaria, 2014 WL 929275, at *9, where the court’s finding of a willful/knowing violation of TCPA was based on the allegation defendant “knew or should have known that Livevox was an ATDS” and “knew or should have known that it was calling the wrong person” because plaintiff contacted defendant and informed defendant that she was not the person they were seeking, defendant had the wrong number, and it should cease contacting her. Plaintiff also cites Stewart v. Regent Asset Mgmt. Sols., 2011 WL 1766018, at **6-7 (N.D. Ga. May 4, 2011), in which the court found a violation where: (a) plaintiff “established that Defendant…used an automated caller with a prerecorded message to call Plaintiff’s cell phone on more than one occasion,” and (b) although there is no indication that plaintiff contacted Defendant about the calls, there was “no evidence before the court that Defendant did not know that it made the telephone calls.”   The Court first concludes that it does not need to decide whether Plaintiff had to allege that Defendant willfully or knowingly violated the TCPA or just that Defendant willfully and knowingly made the calls. The Court finds that the analysis and rationale of the Echevvaria and Harris courts is persuasive on the issue of what Plaintiff is required to allege with respect to Defendant willfully or knowingly violating the TCPA. Accordingly, the Court holds that a willful or knowing violation of TCPA requires that Plaintiff has to plead that Defendant was made aware of/notified that Plaintiff did not consent to calls from Defendant. As Plaintiff did not plead that he notified Defendant that he did not consent to the calls (or that Defendant was otherwise aware that Plaintiff did not consent to the calls), the Court grants Defendant’s Renewed Motion to Dismiss as it relates to Count II.