In Watts v. Emergency Twenty Four, Inc. (No. 20-cv-1820 (N.D. Ill. June 21, 2021), the Northern District of Illinois granted a motion to dismiss claims asserted against a security company under the Telephone Consumer Protection Act (TCPA), finding that dialing system at issue did not qualify as an automatic telephone dialing system (ATDS).
The defendant in Watts, Emergency Twenty Four, Inc. (Emergency 24), provides burglar and fire alarm services to businesses throughout Illinois and the United States. The plaintiff, Preston Watts, is a former employee of one of Emergency 24’s customers. Although he has not worked for this business for several years and claims to have repeatedly asked not to be contacted, Watts alleges that Emergency 24 called his cell phone every time his former employer’s alarm was tripped. Based on this, he asserted claims for violation of the TCPA, alleging that the calls were placed using an ATDS. Watts further sought to certify a nationwide class of similarly situated individuals who received automated calls on their cell phones from Emergency 24 even though they had not provided consent.
In granting Emergency 24’s motion to dismiss, the court held that, under the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021), a dialing system only qualifies as an ATDS if it has “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” The court noted that Watts did not allege that the system at issue uses a random or sequential number generator. Rather, the facts alleged show that Emergency 24’s equipment stored Watts’s number in a database and dialed that stored number because he was an employee at a business that used Emergency 24’s alarm notification system.
Further, the court rejected Watts’s argument that the case should not be resolved on a motion to dismiss because it is not possible for him to know the precise capabilities of Emergency 24’s dialing system without the benefit of discovery. Although a plaintiff is not required to plead specific facts regarding the technical specifications of the call system at issue, the court held a complaint must contain more that conclusory allegations that an ATDS was used. Nevertheless, the court granted Watts the opportunity to file an amended complaint and attempt to allege additional supporting facts.
This case reaffirms that a system cannot qualify as an ATDS if there are no facts to show that it has the capacity to dial randomly or sequentially generated numbers. Merely having an automated system does not, by itself, give rise to liability under the TCPA. This is particularly true when, as here, a call is placed by some external triggering event, such as the tripping of an alarm.