In Curry v. Synchrony Bank, N.A., 2015 WL 7015311, at *2-3 (S.D.Miss.,2015), Judge Guirola found that a TCPA plaintiff did not plead facts to suggest that an ATDS was used under the TCPA.

The Court has found no binding precedent within the Fifth Circuit with respect to the types of allegations required to raise a right to relief above the speculative level in a TCPA action. Curry argues that “numerous courts have held that a plaintiff need not allege any facts to support an allegation that an ATDS was used by a defendant; rather a plaintiff need only allege that the calls were placed with an ATDS in order to sufficiently plead a claim.” (Pl.’s Mem. 3, ECF No. 8). The majority of courts to have considered the issue, though, have found that a plaintiff’s bare allegation that a defendant used an ATDS is not enough. See, e.g., Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704, at *2 (N.D.Ill. July 9, 2015); Trumper v. GE Capital Retail Bank, 79 F.Supp.3d 511, 513 (D.N.J.2014); Jones v. FMA Alliance Ltd., 978 F.Supp.2d 84, 86–87 (D.Mass.2013). The Court finds these and similar cases to be more persuasive than those Curry cites for much the same reasons as the district court in Aikens v. Synchrony Fin. d/b/a Synchrony Bank, No. 15–10058, 2015 WL 5818911 (E.D.Mich. July 31, 2015), a case in which the plaintiff was represented by the same law firm representing Curry in this action, and in which the plaintiff made nearly identical arguments to those made here. See id. at *2–4, report and recommendation adopted, 2015 WL 5818860, at *1 (E.D.Mich. August 31, 2015).  Regardless, Curry contends that she has done more than allege merely that the Bank used an ATDS because she “alleged that she received one hundred and ninety (190) automated collection calls from [the Bank] on a near-daily basis over an approximate five-month period.” (Pl.’s Mem. 4, ECF No. 8). However, “[w]hile plaintiffs cannot be expected to provide specific details about the type of dialing systems used to deliver the calls they receive, it is entirely reasonable to demand that plaintiffs provide sufficient information about the timing and content of the calls they receive to give rise to the reasonable belief that an ATDS was used.” See Aikens, 2015 WL 5818911, at *4 (emphasis added).  Curry “has not provided sufficient contextual details to determine whether she spoke to a human or merely heard a recording upon picking up the phone.” See id. “If she spoke to a human, she has not indicated whether she heard a human voice immediately upon picking up her phone, or whether there was a significant period of ‘dead air,’ which is generally indicative of the use of a automatic dialer.” Id. “[Curry]’s allegations permit the Court to infer that she received a great number of calls from [the Bank]’s number, but no allegations … permit an inference that [the Bank] used an ATDS to accomplish these calls.” See id. “To surmount this threshold, [Curry] could plead those facts which are likely within her knowledge, but which she has not included in her complaint….” See id. This would include “the content of [the] calls, whether she spoke to a human, whether there was dead air prior to a human picking up the line, or any other facts which may tend to make the use of an ATDS more likely.” See id.; see also, e.g., Martin, 2015 WL 4148704, at *2; Jones, 978 F.Supp.2d at 86–87.  “Because these facts were not alleged in her complaint, [Curry] has not stated a plausible claim for relief under the TCPA § 227,” and the Bank’s Motion will be granted. See Aikens, 2015 WL 5818911, at *4; see also Crawford v. Target Corp., No. 3:14–cv–0090–B, 2014 WL 5847490, at *3–4 (N.D.Tex. Nov. 10, 2014) (denying motion to dismiss TCPA action where, inter alia, the plaintiff “indicated the reasons for her contention that [the d]efendant employed an ATDS in calling her”). However, although the Bank requests a dismissal with prejudice, the Court will allow Curry an opportunity to amend her Complaint to attempt to cure the identified deficiencies. See, e.g., Martin, 2015 4148704, at *2. The Bank offers little, if any, persuasive opposition to the request to amend, this action is in its early stages, and this is Curry’s first request to amend. See, e.g., Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir.2013) (discussing factors to be considered for a request to amend). Furthermore, it is well-settled in this Circuit that leave to amend should be freely given. See id.