In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter.
As to land lines, Judge Watson found no claim because an established business relationship existed:
Zehala’s Complaint and exhibits establish that he had an established business relationship with AmEx—as debtor and creditor—at the time of the calls. See, e.g., Sardinas v. Geithner, 2:10–CVB–501JCM, 2010 WL 2696626, at *3 (D.Nev. July 6, 2010) (dismissing TCPA claim based upon existence of established business relationship with the consumer). Accordingly, the Court grants AmEx’s motion to dismiss with regards to Zehala’s TCPA claim as based on calls to his residential line.
As to cellular telephones, Judge Watson found the claim properly pleaded because Plaintiff pleaded an absence of consent:
To state a claim under the TCPA for calls made to a cellular phone, a plaintiff must establish that: (1) a call was made to a cell or wireless phone, (2) by the use of any automatic dialing system or an artificial or prerecorded voice, and (3) without prior express con-sent of the called party. 47 U.S.C. § 227(b)(1)(A); see generally Pugliese, 2010 WL 2632562. Defendant bears the burden of establishing prior consent. See Pollock v. Bay Area Credit Serv., LLC, No. 08–61101–Civ., 2009 WL 2475167, at *9–10 (S.D.Fla. Aug.13, 2009). The FCC stated in a 2008 declaratory ruling that, “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” 23 F.C.C.R. 559, 564. ¶ Zehala alleges that AmEx “used an automatic telephone dialing systems, and/or predictive dialer systems and/or artificial prerecorded voice message auto dialers as defined by the TCPA when calling him regarding the alleged account that caused expense to him such as the result of calling cell phone numbers or other such fees.” Compl. ¶ 56. He also states that AmEx “never had and still does not have express permission from Plaintiff to call him at any phone number regarding the alleged account ….” Id. ¶ 54. ¶ AmEx does not address Zehala’s claim that it violated the TCPA by also calling his cellular phone, nor does it address whether Zehala released his cell phone number to it. Additionally, the Court is aware of no precedential authority demonstrating that the exemption for an established business relationship in section 227(b)(1)(B) applies to claims brought under section 227(b)(1)(A). Rather, the exemption appears to qualify the language of only section 227(b)(1) (B) regarding residential lines. Notably, persuasive authority from other circuits suggests that the exemption for an established business relationship in section 227(b)(1)(B) does not apply to claims brought under section 227(b)(1)(A). See, e.g., Bentley v. Bank of America, N.A., 773 F.Supp.2d 1367 (S.D.Fla.2011). ¶ Taking the facts in the light most favorable to Plaintiff, Zehala pleaded that a call was made to a cell phone by the use of any automatic dialing system or an artificial or prerecorded voice and without his prior express consent. Compl. ¶¶ 54, 56. Accordingly, the Court finds Zehala sufficiently pleads a violation of the TCPA under section 227(b)(1)(A)(iii) for calls to his cellular phone to withstand a motion to dismiss.