In Clayton v. Aaron’s Inc., 2013 WL 3148174 (E.D.Va. 2013), Judge Spencer addressed whether a consumer who received debt collection text messages stated a claim under the TCPA. Judge Spencer held that the consumer could not.
§ 227(b)(1)(A)(iii) prohibits any person within the United States from making any call (or text message) to a cell phone number, other than for emergency purposes or with the prior express consent of the recipient, through the use of automatic dialing. As an initial matter, Plaintiff fails to state a claim upon which relief can be granted because “calls made by a party attempting to collect a debt owed to it are exempt from the TCPA.” Gray v. Wittstadt Title & Escrow Co., LLC, No. 4:11cv111, 2011 U.S. Dist. LEXIS 141830, at *12 (E.D.Va. Nov. 28, 2011)(dismissing a TCPA claim where the defendant allegedly called plaintiff 209 times in roughly one year in order to collect a debt)(internal citations omitted), aff’d per curiam, 475 Fed. Appx. 461 (4th Cir. Aug. 20, 2012). See also 47 C.F.R. 64.1200(a)(2)(iii), (iv)(exempting from the coverage of the TCPA calls made to a person with whom the caller has a preexisting established business relationship or calls made for a commercial purpose not including unsolicited advertisements or phone solicitation). Since Plaintiff alleges that Defendant sent the text messages at issue “for the purpose of collecting a consumer debt from [Plaintiff],” (Compl.¶ 11), these communications are exempt from the TCPA and Plaintiff has failed to state a plausible claim under TCPA. However, even if the conduct that Plaintiff complains of was not exempt from the TCPA, this claim would still fail because Plaintiff has not sufficiently alleged the use of automatic dialing. In order to state a plausible claim for relief under § 227(b)(1)(A)(iii), Plaintiff must allege that Defendant used automatic dialing to send a text message to Plaintiff’s cell phone that was not for emergency purposes or with Plaintiff’s prior express consent. Under § 227, automatic dialing refers to equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” § 227(a)(1). In this case, Plaintiff fails to make a single factual allegation to support his claim that Defendant used automatic dialing rather than manually sending individualized messages about Plaintiff’s outstanding debt or using some other system. For instance, Plaintiff fails to allege any facts regarding the general content, number, timing, or phone number from which any of the alleged messages were sent that show that it is plausible that Defendant used autodialing. See, e.g., Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D.Cal.2010)(complaint was sufficient where plaintiffs described receiving advertisements written in an impersonal manner from a short code that was registered to the defendants and the defendants had no other reason to contact the plaintiffs); Abbas v. Selling Source, LLC, No. 09CV3413, 2009 U.S. Dist. LEXIS 116697, at *12–13 (N.D.Ill.Dec. 14, 2009)(complaint was sufficient where plaintiff alleged that defendants sent “mass transmissions of wireless spam” to potential customers, defendants used a short code to send him a text which read as a message “from an institutional sender without any personalization,” and defendants had no reason other than telemarketing to call him); see also Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1130 (W.D.Wa.2012)(plaintiff’s allegation of the generic content and automatic generation of the text messages sufficed to infer the use of automatic dialing). The Court need not take Plaintiff’s conclusory assertion that Defendant used autodialing as true, Twombly, 550 U.S. at 555, and further, Plaintiff alleges that Defendant sent the messages to him specifically “for the purpose of collecting a consumer debt from him,” (Compl.¶ 11.) Without even a basic attempt to plead factual allegations showing that it is plausible that Defendant used an autodialer, this claim fails. Accordingly, the Court GRANTS Defendant’s Motion to Dismiss.