NO ROBOTS, NO MERCY: Court Suggests ATDS Is Not Essential to Certain TCPA § 227(b) Claims

Hi TCPAWorld:

In the ever-changing world of technology, where new systems and platforms are constantly developed to place calls using an automatic telephone dialing system (“ATDS”), it can be difficult to keep track of what actually qualifies as an ATDS. But what happens if a call is made using a prerecorded message without an ATDS? Even in that scenario, a caller may still be exposed to liability under a § 227(b) claim.

Take the case of Richard M. Zelma v. Aaron L. Ram & RE/MAX Real Estate Ltd., Inc., No. 25CV15701 (EP) (JSA), 2026 WL 1398784 (D.N.J. May 19, 2026) where the defendant argued that since they didn’t use an ATDS, the § 227(b) claim is improper.

As a refresher, the TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” See 47 U.S.C. § 227(b)(1)(B). Section 47 C.F.R. § 64.1200(a)(3) similarly makes it unlawful “to initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message that includes or introduces an advertisement or constitutes telemarketing without the prior express written consent of the called party.”

The plaintiff alleges that in May and June 2025, he received unsolicited telemarketing calls from “Ram,” a New Jersey real estate agent associated with RE/MAX, despite his number being listed on the National Do-Not-Call Registry. During a 20-minute call on June 6, Ram allegedly used the Mojo Power Dialing platform, asked if the plaintiff wanted to sell his home, and failed to clarify his role or disclose whether the calls complied with Do-Not-Call regulations.

After the call, the plaintiff emailed multiple RE/MAX representatives but allegedly received no response. On August 10, 2025, he filed a lawsuit asserting violations of the Telephone Consumer Protection Act (TCPA), including unlawful telemarketing, autodialer use without consent.

To properly state a claim for a violation of § 227(b)(1)(B), a plaintiff must plead that (1) the defendant called his residential telephone number, (2) used an artificial or prerecorded voice to deliver a message, (3) did so without the recipient’s prior express consent. The court found that the first and third elements were sufficiently pled since Plaintiff alleges that Ram called his residential telephone number twice, and that “Defendants neither sought nor obtained prior consent.”

The court then turned to evaluating whether the Mojo Power Dialing Platform qualifies as an ATDS. Relying on Collins v. National Student Loan Program, 360 F. Supp. 3d 268, 271 (D.N.J. 2018) (where the Court determined that a human call initiator system does not constitute an ATDS under the TCPA because the system cannot initiate calls without manual human intervention by a clicker agent), Defendant argued their platform too was not an ATDS. While the court noted that the defendant tries to impermissibly rely on facts outside the pleadings to make this argument at the pre-discovery stage, the court noted that for purposes of an action brought under § 227(b)(1)(B), “whether Defendants used an ATDS is immaterial to Plaintiff’s claim.”

The court examined the distinct prohibitions set forth in subsections (1)(A) and (1)(B) of § 227(b), emphasizing that the two provisions address different conduct. Specifically, § 227(b)(1)(A) concerns calls made using an ATDS, whereas § 227(b)(1)(B) governs telephone calls to residential telephone lines that use an artificial or prerecorded voice to deliver a message without the called party’s prior express consent. Because the plaintiff asserted his claim under § 227(b)(1)(B), the court explained that the relevant inquiry was not whether an ATDS had been used, but rather “whether Defendants initiated a telephone call to Plaintiff using an artificial or prerecorded voice.”

Applying that standard, the court concluded that the plaintiff failed to state a claim under § 227(b)(1)(B) because the only voice identified in the complaint, apart from the plaintiff’s own, was Ram’s live voice, which did not constitute an artificial or prerecorded voice.

Importantly, the decision highlights that liability under § 227(b), and particularly under § 227(b)(1)(B), may exist even in the absence of an ATDS. Although many TCPA claims brought under § 227(b) traditionally focus on the alleged use of an ATDS, this ruling underscores that a plaintiff may instead proceed by alleging the use of an artificial or prerecorded voice. As a result, the decision may encourage increased litigation under § 227(b)(1)(B), particularly in cases where plaintiffs cannot plausibly allege the use of an ATDS but contend that an artificial or prerecorded voice was utilized.

We will be sure to keep an eye on any subsequent cases that provide a similar ruling that this one does and will report back as soon as we hear more.

Talk to you soon TCPAWorld and be safe.