Hi TCPAWorld!
In Nickson v. TrueAccord Corp., No. DKC 25-3686, 2026 WL 2979443 (D. Md. Oct. 5, 2026), the Court granted TrueAccord’s motion for summary judgment on the § 227(b) ATDS count and its motion to dismiss, or alternatively for judgment on the pleadings, on the § 227(c) Do Not Call count. Both counts are gone. One lost on the evidence after discovery, and the other never got past the face of the complaint.
Plaintiff Beaufort Nickson, proceeding pro se, had several accounts with Affirm Inc. He alleges that he revoked his consent with Affirm on September 21, 2023, and that Affirm’s text messages stopped after that. Nearly a year later, on August 25, 2024, texts about the same Affirm debt started arriving from TrueAccord. A month after that, TrueAccord emailed him to say it was trying to help “solve the problem” with his Affirm balance. He sued TrueAccord on two theories: that (1) it used an automatic telephone dialing system to text his cell phone without consent in violation of § 227(b), and that (2) it contacted him while his number was on the National DNC Registry in violation of § 227(c).
Count I went to summary judgment after discovery closed. To win a § 227(b) claim in the District of Maryland, a plaintiff must show that the defendant called his cell phone, using an ATDS, without his prior express consent. TrueAccord went after the second element. Under Facebook, Inc. v. Duguid, 592 U.S. 395, 399 (2021), equipment qualifies as an ATDS only if it can store or produce telephone numbers using a random or sequential number generator. Plaintiff’s complaint offered only a conclusory assertion that TrueAccord used one. TrueAccord offered evidence. It submitted a statement of technical specifications from SBT, its vendor, saying the platform does not “create, derive or independently store telephone numbers” and cannot send messages using random or sequential number generation. It backed that up with a sworn declaration from SBT’s Chief Technology Officer affirming the specifications.
Plaintiff argued the specifications and declaration were inadequate and moved to compel more discovery. The Court held a telephone conference on the motion, denied it, and found that TrueAccord had adequately complied with his discovery requests. So, the Court found no genuine dispute that the technology SBT used to text Plaintiff was not an ATDS.
Most of Plaintiff’s opposition was about consent, and specifically his revocation with Affirm. The Court never reached it. Without an ATDS, consent had no effect on the outcome.
Count II was simpler. The Court noted that it had already signaled the problem during the recorded telephone conference, and Plaintiff did not oppose the motion. Section 227(c)(5) gives a private right of action to a person who receives more than one call within a 12-month period by or on behalf of the same entity in violation of the DNC regulations. Borrowing from Nickson v. Advanced Marketing & Processing, Inc., No. 22-cv-2203-DLB, 2023 WL 4932879, at *6 (D. Md. Aug. 2, 2023), the Court required Plaintiff to allege that his number was on the Registry and that TrueAccord made more than one telephone solicitation to him within a year.
Plaintiff cleared the first element. His number was plausibly on the Registry. He could not clear the second. Section 227(a)(4) defines a “telephone solicitation” as a call or message initiated “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” Plaintiff’s own complaint alleged that every message TrueAccord sent him related to debt collection. A message trying to collect an Affirm balance does not encourage anyone to buy, rent, or invest in anything. The texts were not solicitations, and the § 227(c) count failed under the motion to dismiss standard.
Last month we covered Dobronski v. Credit Swag Ventures, Inc., where the Eastern District of Michigan dismissed a DNC claim because nobody on the call tried to sell the plaintiff anything, even though the caller was in the debt relief business. Nickson makes the same point more directly. When the plaintiff pleads that every message was a collection message, the complaint defeats its own DNC count. On the ATDS side, the case shows what was enough at summary judgment: a vendor’s technical specifications and a sworn declaration from someone who knows how the platform works, set against a plaintiff with only a conclusory allegation. Collectors who text through a third-party platform should know who at the vendor can sign that declaration before they need it. None of this, however, helps a collector that uses an artificial or prerecorded voice, which § 227(b) reaches whether or not an ATDS is involved.
We will keep you posted, TCPAWorld!