WINNING: Court Says “Dead Air” Allegations Not Enough to Plead ATDS Use–Dismisses TCPA Claims Against Warranty Providers

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The battle over the TCPA’s ATDS definition continues to rage in courthouses across the country.

The Facebook Ruling Resource page remains a critical resource for those trying to navigate these choppy waters, of course, but this is seesaw all the way.

In the most recent ruling to weigh in, a court found meager allegations of “dead air” before a call connection was likely not sufficient to state an ATDS claim.

In Forteza v. Affordable Auto Shield, 2024 WL 898905 (N.D. Tex. Feb 29, 2024) the Court was unimpressed with a plaintiff’s generic pleading in a TCPA suit.

The Court noted that although the Plaintiff sought to recover for over 20 alleged calls, only one call was pleaded with any specificity. As to the rest of the calls there were simply no facts alleged. And with several defendants locked up in the case there was no way to know who had done what.

On the ATDS component, however, the court was particularly unimpressed determining that the mere fact “dead air” was encountered was simply not sufficient to show the calls had been made using an ROSNG, as required by Facebook. 

The court also dismissed the internal DNC claim finding that a failure to plead a request to stop calls means there are no facts supporting the conclusion Defendants lacked an internal DNC list.

Good win all around.

If you’re facing TCPA litigation–or fear you may–be sure to grab a copy of the Troutman Amin 2024 TCPA Annual Review, presented by Contact Center Compliance–totally free folks!

SEVENTH DAY OF CZARMAS!: IT’S HERE IT’S HERE IT’S FINALLY HERE!!!!–2024 Troutman Amin, LLP TCPA Review, presented by Contact Center Compliance is AVAILABLE NOW (FREE!)

Chat soon!

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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