It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is withinthe United States--(A)
to make any call
(other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or anartificial or prerecorded voice--. . .to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which thecalled party is charged for the call[.]47 U.S.C. § 227(b)(1) (2006). (Emphasis added.)The statute further defines “automatic telephone dialing system” (the"ATDS") as “equipment which has the capacity – (A) to store or produce telephonenumbers to be called, using a random or sequential number generator; and (B) todial such numbers.”
. § 227(a)(1).The plain text of the statute requires only “the capacity” for such random or sequential generation, see 47 U.S.C. § 227(a)(1), and the implementing regulationsimpose no higher burden. See 47 C.F.R. § 64.1200(f)(1). Further, the Court of Appeals for the Ninth Circuit found this clear language mandates only allegationsof this “capacity.” see
Satterfield v. Simon & Schuster, Inc.
, 569 F.3d 946, 950 (9thCir. Cal. 2009). See also,
Abbas v. Selling Source, LLC
, 2009 U.S. Dist. LEXIS116697, 13-14 (N.D. Ill. Dec. 14, 2009), citing
, and holding under Fed.R. Civ. P. 12(b)(6), it is enough for a plaintiff to merely allege that the equipmentused by the defendant had the capacity to produce or store and dial numbersrandomly or sequentially. That is
what was pleaded here.This is also consistent with prior holdings in the Southern District of California. In
Ryabyshchuk v. Citibank (South Dakota) N.A.
, 2011 U.S. Dist.LEXIS 136506, 5-6 (S.D. Cal. Nov. 28, 2011), the court found:
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