Greetings TCPAWorld!

I’m back with another case update—this time, it’s all about relentless robocalls, a wrong number, and a lawsuit that didn’t go as planned! Few things are more annoying than a relentless robocall—except maybe realizing you’re being hounded for a debt that isn’t yours. Yikes! That’s where a recent New Jersey case caught my attention. So what’s the scoop? In Frato v. Cap. Mgmt. Servs. L.P., Civil Action No. 23-4049 (MAS) (JBD), 2025 U.S. Dist. LEXIS 5454 (D.N.J. Jan. 8, 2025) offers important lessons on what it takes to plead a TCPA violation successfully.

Here we have a Plaintiff who allegedly received 29 unwanted calls from Capital Management Services about a debt—but here’s the catch—the debt wasn’t even his. The calls kept coming despite repeatedly telling them they had the wrong person and being on the Do Not Call Registry (“DNCR”). Frustrated, Plaintiff took legal action.

But this is where things start to get into the details. The Court, following precedent from Facebook, Inc. v. Duguid, 592 U.S. 395, 398 (2021), reminded us that to prove the use of an automated telephone dialing system (“ATDS)”, you need to show the system could “use a random or sequential number generator to either store or produce phone numbers to be called.”

Plaintiff’s Complaint hit a snag because he basically just stated “upon information and belief” that an ATDS was used. That alone doesn’t cut it. As the Court put it, “[A] complaint must do more than simply parrot the definition” of ATDS when bringing a claim under Section 227(a)(1). Frato, 2025 U.S. Dist. LEXIS 5454, at *7. In other words, Plaintiff needed to show something more than just speculation—actual indicators of automation. The Court noted, in Smith v. Pro Custom Solar L.L.C., No. 19-20673 (KM) (ESK), 2021 WL 141336, at *2 (D.N.J. Jan. 15, 2021), that specific facts suggesting ATDS use might include delays before hearing messages, calls ending with beeps, instructions to call 1-800 numbers, unusual phone numbers, or robotic voices.

But here’s the problem—Plaintiff’s Complaint didn’t include any of these telltale signs. In fact, the only real detail supporting his claim of automation appeared in his opposition brief—not the Complaint itself. That’s a major issue. As the Court pointed out, you can’t amend your Complaint through briefing. See Derieux v. FedEx Ground Package Sys., Inc., No. 21-13645 (NLH)(EAP), 2023 U.S. Dist. LEXIS 10033, 2023 WL 349495, at *2 n.2 (D.N.J. Jan. 20, 2023) (collecting cases). The story’s moral is that if it’s not in the Complaint, it doesn’t count.

Next, the Court also tackled another interesting claim about prerecorded voices. While Plaintiff claimed he received “scripted voicemails of an impersonal nature,” he also described having actual conversations with representatives. What? That contradiction proved destructive to his claim under Section 227(b)(1)(B). If he was having live conversations, how could the calls be prerecorded? The court wasn’t buying it, and neither would the average Joe just hearing that statement.

Perhaps most intriguingly, the Court shot down Plaintiff’s claims under the TCPA’s implementing regulations, 47 C.F.R. § 64.1200, because—plot twist—debt collection calls aren’t considered “telephone solicitations” under the law. The TCPA defines a solicitation as an attempt to encourage a purchase of goods or services. However, the 2008 FCC ruling clarifies that debt collection calls fall outside those restrictions. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565 (2008). So, while Plaintiff may have been annoyed by the calls, the law doesn’t treat debt collection the same way it treats telemarketing. This is key here to remember.

The good news for Plaintiff? Well, the Court dismissed his claims without prejudice, giving him another bite of the apple and pleading his case with more specific facts. Frustration alone won’t win a TCPA case; you need solid evidence.

The takeaway? If you bring a TCPA claim, you better come with receipts—because courts aren’t letting cases slide on vague allegations. As the saying goes, if you have the facts on your side, pound the facts; if you have the law on your side, pound the law; but if you have neither, pound the table. Plaintiff tried to pound the table, but the Court wasn’t listening. Will Plaintiff get it right the second time around? We’ll see. Until then, let this be a reminder that when it comes to ATDS lawsuits or any lawsuit for that matter, the details make or break your case.

As always,

Keep it legal, keep it smart, and stay ahead of the game.

Talk soon!