Antitrust Law Daily Wrap Up, PRIVACY—D. S.C.: T-Mobile’s call to dismiss TCPA claim goes unanswered, (Aug 31, 2015)

By Michael Menzhuber, J.D., LL.M.

An individual’s claim that T-Mobile USA, Inc. violated the Telephone Consumer Protection Act (TCPA) by making calls to her cell phone without her express consent may proceed. The federal district court in Charleston, South Carolina denied T-Mobile’s motion to dismiss because it determined that the individual stated a plausible claim for relief under the TCPA (Stewart v. T-Mobile USA, Inc., August 28, 2015, Duffy, P.).

Background. Tiffany Stewart filed a complaint, alleging that: (1) T-Mobile called her cell phone on numerous occasions using an automatic telephone dialing system (ATDS), artificial or prerecorded voice, or both; and (2) when she answered her cell phone, she got a prerecorded message for someone else. She also asserted that she never gave T-Mobile her express consent to be contacted by an ATDS or, in the alternative, revoked any such consent by demanding that T-Mobile cease calling her cell phone. T-Mobile moved to dismiss the complaint on the grounds that she did not alleged critical facts required to establish a plausible TCPA violation.

Telephone Consumer Protection Act. T-Mobile argued that Stewart’s complaint was deficient because she did not identify: (1) the phone number that T-Mobile allegedly called; (2) the dates and times that the calls were allegedly made; (3) any circumstances that would support the inference that the alleged calls were placed with an ATDS; or (4) any other details that would suggest that a violation of the TCPA had occurred. The court disagreed. It determined that her complaint was sufficient to state a plausible claim for relief under the TCPA because she alleged that: (1) she received numerous cell phone calls from T-Mobile within the last year; (2) the cell phone calls were made using an ATDS, artificial or prerecorded voice, or both; and (3) she did not give T-Mobile her consent to be called, or in the alternative, she expressly revoked any such consent when, after following a prompt to speak with a live representative, she requested that T-Mobile cease calling her cell phone.

The court was not also persuaded by T-Mobile’s argument regarding Stewart’s failure to identify the dates and times of the cell phone calls at issue because it determined that it was not necessary to allege the exact dates and times of the calls in order to notify T-Mobile of its purported violations of the TCPA.

T-Mobile acknowledged that Stewart’s complaint contained “scant factual allegations regarding the use of a prerecorded voice” but argued that simply alleging that it used an ATDS was insufficient and, therefore, dismissal was required. The court, however, found that Stewart alleged sufficient detail in this regard because she asserted that: (1) she received multiple cell phone calls containing a specific prerecorded message; (2) the message was intended for someone else; and (3) the message was followed by a prompt to connect with a live representative.

The case is No. 4:14-cv-02086-PMD.

Attorneys: Brian Joseph Headley (The Headley Law Firm) for Tiffany Stewart. Cherie Wilson Blackburn (Nexsen Pruet) for T-Mobile USA Inc.

Companies: T-Mobile USA Inc.

Cases: Privacy SouthCarolinaNews