In Melvin v. Ocwen Loan Servicing LLC, No. 8:18-cv-1911-T-36SPF, 2019 U.S. Dist. LEXIS 74995, at *12-14 (M.D. Fla. May 3, 2019), Judge Honeywell found that a TCPA Plaintiff had adequately pleaded use of an ATDS.
The Court is persuaded by the reasoning in Gonzalez and Adams and concludes that the portion of the 2003 FCC Order pronouncing that the TCPA applies to debt collectors is the operative [*13] law until further guidance from the FCC or the Eleventh Circuit or other binding authority. See Murphy, 797 F.3d at 1307 (quoting Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1120-21 (11th Cir. 2014) (“District courts may not determine the validity of FCC orders, including by refusing to enforce an FCC interpretation, because ‘[d]eeming agency action invalid or ineffective is precisely the sort of review the Hobbs Act delegates to the courts of appeals in cases challenging final FCC orders.'”)). Defendant’s Motion is denied on this basis. Melvin’s Complaint sufficiently alleges an ATDS. Melvin alleged that Ocwen made over eighty calls, continued those calls after several demands to stop them, he heard silence and a clicking sound once he answered the phones, which may suggest the use of an ATDS. Doc. 10 at ¶¶ 17-20. But Ocwen can revisit this issue on summary judgment. Defendant’s Motion is denied on this basis. In any event, Melvin’s allegations that Ocwen used a pre-recorded or artificial voice for the calls to his cellular telephone, id. at ¶¶ 17c, 26, 42, are sufficient to state a violation of the TCPA. 47 U.S.C. § 227(b)(1)(A)(iii). See also Gonzalez, 2018 U.S. Dist. LEXIS 153480, 2018 WL 4217065 at *7 (“So even if Gonzalez had failed to state a claim regarding Ocwen’s use of an ATDS, his TCPA claim would proceed based on his allegation that Ocwen used an artificial [*14] or prerecorded voice.”).