In Vance v. Bureau of Collection Recovery LLC, 2011 WL 881550 (N.D.Ill. 2011), Judge Dow found that Plaintiff had pleaded enough facts to proceed on a TCPA claim arising out of debt collection calls to his cellular telephone. The facts recited in the opinion were scarce, but, basically, it appears that the Plaintiff alleged that she received multiple automated debt collection phone calls on her cellular phone from Defendant, alleging that her phone rang, she answered it, and then she heard a “pre-recorded voice” that “told her to hold for assistance.” Based on these facts, Plaintiff alleges that the calls were placed by “predictive dialers” that “place calls without human intervention.” Judge Dow found that this was enough for the Complaint to get past the pleadings stage, explaining:
The first argument advanced in Defendant’s motion to dismiss is that Plaintiff failed to properly allege that Defendant called her cell phone using an “automated telephone dialing system.” at 2 (citing 47 U.S.C. § 227(a)(1)). According to Defendant, Plaintiff failed to allege that Defendant’s calls to Plaintiff’s cell phone were made with equipment with the “capacity * * * to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. Instead, Defendant argues that Plaintiff used the terms “autodialed” and “predictive dialers,” and the TCPA does not contain these terms. The Court respectfully rejects Defendant’s argument. ¶ First, Plaintiff’s complaint does not fail to state a claim merely because it uses terminology that differs slightly from the terminology of the statute. See, e.g. Gustafson v. Jones, 117 F .3d 1015, 1018 (7th Cir.1997) (pleading certain “magic words” that track the language of a legal theory “is no more necessary than including other legal arguments in the complaint”). In ruling on a motion to dismiss, the court “take[s] all facts alleged in the complaint, as well as any reasonable inferences from those facts, in the light most favorable to [the non-moving party].” Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 919 (7th Cir.1992) (emphasis added). It is a reasonable inference from Plaintiff’s use of the term “predictive dialers” to believe that she is alleging that Defendant’s equipment meets the definition of that prohibited by the TCPA. There may be a material difference between predictive dialers and the type of equipment the statute prohibits. But any such distinction is a matter to be explored through discovery. The specific capabilities of Defendant’s equipment is a factual issue and not a proper basis for dismissal. ¶ In any event, the Court notes that the FCC has indicated, and other courts have held, that predictive dialing systems do meet the definition of devices prohibited by the TCPA. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14093 (June 26, 2003) (“[T]he Commission finds that a predictive dialer falls within the meaning and statutory definition of ‘automatic telephone dialing equipment’ and the intent of Congress.”); Ortega v. Collectors Training Inst. of Ill., 2011 WL 241948, at *8 (S.D.Fla. Jan. 21.2011) (refusing to grant summary judgment when the plaintiff alleged the defendant used “auto dialers” and that the plaintiff heard a “robot voice” on the phone); Rivas v. Receivables Performance Mgmt., LLC, 2009 U.S. Dist. LEXIS 129378, at *13 (S.D.Fla. Sept. 1, 2009) (denying summary judgment when the plaintiff offered proof that “Defendant placed calls to Plaintiff using a mechanical computer device that dialed Plaintiff’s number without human intervention. Thus, Plaintiff has at least stated a material issue of fact”). Whether Defendant’s particular equipment has the functionality to meet that definition is a factual matter that has not yet been developed.
In Vigus v. Southern Illinois Riverboat/Casino Cruises, Inc., 2011 WL 884092 (S.D.Ill. 2011), Judge Gilbert recognized that calls to land-lines versus calls to cellular telephones proceed on different legal theories under the TCPA. Plaintiff was the class-action recipient of telemarking calls to his residential land-line telephone. The Court found the matter incapable of class-treatment, explaining:
With respect to the specific set of facts presented in this case, the fact that the Casino delivered its prerecorded messages en masse to many recipients does not somehow consolidate the necessary individual inquiries into a common, predominant inquiry. It was not the common course of conduct of making of the prerecorded telephone calls generally that constituted the allegedly wrongful act, but the irregular conduct of directing those calls to certain individuals that might have been protected from those calls by the TCPA because they had been assigned numbers formerly assigned to Total Rewards program applicants. See Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D.Pa.1995) (“The gravamen of plaintiff’s complaint is not a common course of conduct by the defendant, but rather a series of individual [fax] transmissions under individual circumstances, each of which is an alleged violation of the [TCPA]. Lacking a single set of operative facts, it is difficult to see how common questions, if any, predominate.”). Determining which specific calls were made to those protected individuals will be the predominant issue in this litigation, and Vigus has not presented an accurate way to answer the individual questions presented by this case on a class-wide basis. Even if Vigus’ expert could narrow the field of potentially reassigned numbers, identifying which of those numbers were actually reassigned would still require further, individualized inquiry. Given the facts of this case, including the origin of the Casino’s call list from its existing customers who gave their general consent to be called, determining which specific calls were made to individuals protected by the TCPA cannot be made by generalized proof at a class level. See, e.g., Gene & Gene, 541 F.3d at 327-29 (plaintiff “failed to advance a viable theory of generalized proof to identify those persons, if any, to whom [the defendant] may be liable under the TCPA.”).
With his class action case in jeopardy, the Plaintiff requested that the Court allow him to amend his complaint to allege TCPA violative calls to his cellular telephone. Judge Gilbert refused to allow the amendment. While recognizing that calls to cellular telephones and to land line telephones proceed under differing theories under the TCPA, the cellular telephone theory would render Plaintiff an atypical class representative because Plaintiff was not called on his cellular telephone. Judge Gilbert explained:
Vigus also asks the Court to allow him to amend his complaint, which alleges only an improper call to his residential telephone number, to include a claim for improper calls to cellular telephone numbers in violation of the TCPA, 27 U.S.C. § 227(b)(1)(A)(iii). That provision prohibits “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 … to any telephone number assigned to a … cellular telephone service ….“ 27 U.S.C. § 227(b)(1)(A)(iii); see 47 C.F.R. § 64.1200(a)(1)(iii). . . . ¶ To the extent Vigus seeks to certify owners of cell phone numbers called by the Casino who might have a cause of action for violation of 47 U.S.C. § 227(b)(1)(A)(iii), the TCPA’s provision relating to cell phones, his claim is not typical of those putative class members because they rely on different legal theories and different defenses. As noted above, Vigus does not have a cause of action under 47 U.S.C. § 227(b)(1)(A)(iii) for the Casino’s call made to his residential line.