TCPA Motion to Dismiss: Pleading Defects Beyond the Autodialer

A TCPA complaint in federal court has to plead facts, not just the words of the statute. Under Bell Atlantic Corp. v. Twombly, it needs “enough facts to state a claim to relief that is plausible on its face.” Many TCPA complaints don’t get there. They say the defendant “made” the call or that the voice was “prerecorded,” and say nothing more. A company served with one of these complaints usually has more to attack than the autodialer allegation.

What does a TCPA complaint have to plead after Twombly and Iqbal?

Facts that make each element plausible, with the conclusions set aside. The Supreme Court put it bluntly in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009): “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The court sets aside the legal labels and asks whether the remaining facts support a reasonable inference of liability.

That matters in TCPA cases because the elements of 47 U.S.C. § 227 are easy to recite. What the plaintiff often can’t do without more investigation is say who placed the call and what it sounded like. Judges in the Northern and Southern Districts of California have dismissed TCPA claims for missing exactly those facts.

The autodialer argument after Facebook v. Duguid is its own subject, and I covered it in our post on defending autodialer claims after Duguid.

Does the complaint show that your company made the call?

It has to, either directly or through an agent. The FCC’s 2013 Dish Network declaratory ruling (FCC 13-54) drew the line this way: “a seller is not directly liable for a violation of the TCPA unless it initiates a call, but may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer.” The Ninth Circuit adopted the agency standard in its own words in Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), aff’d, 577 U.S. 153 (2016), holding that “a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller.”

Gomez gave the Dish ruling Chevron deference, and the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The Court said it does “not call into question prior cases that relied on the Chevron framework,” and Gomez remains binding Ninth Circuit precedent. The FCC’s role is still in play, though. The Supreme Court heard argument on January 21, 2025, in McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226, on “Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act,” according to the Court’s question presented. The Court hadn’t ruled as of this post.

In Abante Rooter & Plumbing v. Farmers Group, Inc., No. 17-cv-03315-PJH (N.D. Cal. Jan. 4, 2018), several callers said they were calling for “Farmers Insurance,” and the complaint alleged they were the defendant’s representatives. The court dismissed with leave to amend. It held: “It is not enough that each representative identified him or herself as acting on behalf of Farmers Insurance.” It added that the court “is neither required to nor allowed to layer inference upon inference to make plaintiff’s claim for it.”

Control after the call doesn’t fill the gap either. In Canary v. Youngevity International, Inc., No. 5:18-cv-03261-EJD (N.D. Cal. Mar. 20, 2019), the complaint alleged that the defendant took over only after the called person submitted a loan application. The court held: “This alleged control after the call is insufficient to plead agency liability.” It relied on Jones v. Royal Administration Services, Inc., 887 F.3d 443 (9th Cir. 2018), where the Ninth Circuit, affirming summary judgment for the defendant, said the plaintiffs “must do more than establish an agency relationship. They must also establish actual authority to place the unlawful calls.”

This attack has limits. In Ewing v. Freedom Forever, LLC, No. 23-cv-1240-JLS-AHG (S.D. Cal. Jan. 19, 2024), the amended complaint alleged that a senior employee of the defendant took part in one call, that callers read from a script the defendant supplied, and that the other callers indicated they were acting on its behalf. The court declined to dismiss on that ground. If your vendor’s callers use your scripts and your name, the agency argument is weak at the pleading stage, and I’d put the effort into the other elements.

Is the prerecorded-voice allegation more than the statute’s words?

Most federal district courts in the Ninth Circuit now want facts showing that no live person was speaking. In Davis v. RockLoans Marketplace, LLC, No. 23cv0134 DMS (BLM) (S.D. Cal. Nov. 26, 2024), the court acknowledged an older Southern District decision that accepted a bare allegation. It then noted that “the majority of district courts in the Ninth Circuit have held that additional factual allegations are required to satisfy the artificial or prerecorded voice element.” The complaint there repeated the conclusion without any facts about what the calls sounded like, and the court dismissed the claim with leave to amend.

The Davis order, quoting earlier decisions, lists the kinds of details a plaintiff could offer: a robotic-sounding voice, no response when the plaintiff tried to talk, or generic content. In Ewing, the plaintiff alleged a recorded solar pitch that told him to press one to reach a person. The court noted that courts “have repeatedly concluded that where a plaintiff alleges that they were unable to reach a live operator without either remaining on the line or pressing numbers on their phone keypad, it is reasonable to infer that the call involved a prerecorded voice.” It held that the prerecorded-voice allegations were enough.

So I’d treat this as a strong motion when the complaint is a form and a weak one when the plaintiff kept a voicemail. If the plaintiff can amend with a transcript of your own recorded message, you’ve paid to teach them how to plead.

Does the Do Not Call claim plead every element?

A Do Not Call claim under § 227(c)(5) has more moving parts than a robocall claim, and each is a place a complaint can fall short. The private right of action belongs to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the FCC’s rules. The rule itself, 47 C.F.R. § 64.1200(c)(2), bars a telephone solicitation to “a residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry.” The National Do Not Call Registry is the federal list of numbers whose owners don’t want sales calls.

More than one call in 12 months. One call isn’t enough under § 227(c)(5). Count the dated calls the complaint ties to your company. Damages are actual loss or “up to $500” per violation, whichever is greater, and a court may increase them up to three times that amount only for willful or knowing violations. The statute also makes it an affirmative defense that the company established and implemented, with due care, reasonable procedures to prevent these calls, which is why scrub records matter.

Residential subscriber. Cell phones can qualify. The Ninth Circuit held in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), that “a presumptively residential cell phone can be residential even when used for both personal and business purposes.” The court also said defendants “may overcome the presumption by showing that plaintiffs use their cell phones to such an extent and in such a manner that the presumption is rebutted.” That rebuttal usually depends on evidence about how the phone is used, which a court won’t weigh on a Rule 12(b)(6) motion. In Wilbor v. GG Homes, Inc., No. 21cv226-LL-BGS (S.D. Cal. Mar. 22, 2022), the court declined to treat the residential-phone argument as a further ground for dismissal “Because this argument relies on extrinsic evidence the Court has already declined to consider on a motion to dismiss.” Chennette leaned on FCC orders, which is worth watching while McLaughlin is pending.

Registration. The complaint should allege that the number was on the registry before the calls. If it doesn’t, say so.

Telephone solicitation. The statute defines the term in § 227(a)(4) as a call or message “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” and it excludes calls to people who gave prior express invitation or permission, calls to people with whom the caller has an established business relationship, and calls by a tax-exempt nonprofit organization. In Wilbor, texts asking the plaintiff whether he had off-market deals the sender could buy were “offers for the purpose of procuring property,” and the court dismissed the Do Not Call claims without leave to amend.

Should you attack standing under Rule 12(b)(1) or Rule 12(b)(6)?

It depends on which standing you mean. Article III standing concerns the court’s power to hear the case and is raised under Rule 12(b)(1). Whether the plaintiff falls within the statute’s zone of interests is a different question. The Supreme Court explained in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), that the zone-of-interests test is part of the cause of action, and that “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.” That argument belongs in a Rule 12(b)(6) motion.

On Article III, the Ninth Circuit has set a low bar for unwanted marketing contacts. It held in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), that “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Given that holding, I wouldn’t build a motion around a facial standing attack on an ordinary marketing call or text.

A factual attack is different, because it lets you put evidence in front of the judge. Under Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), a factual attack “contests the truth of the plaintiff’s factual allegations, usually by introducing evidence outside the pleadings,” and the plaintiff then has to back up the jurisdictional facts with competent proof. Your own call logs usually can’t come in on a Rule 12(b)(6) motion, but they can support a factual Rule 12(b)(1) attack. There’s a limit. Leite also says “a court must leave the resolution of material factual disputes to the trier of fact when the issue of subject-matter jurisdiction is intertwined with an element of the merits of the plaintiff’s claim.” Whether your company sent the message at all is usually both a standing fact and an element of the claim, so on that question a records-based attack tends to end up looking like summary judgment.

Removal creates a trap. If you removed the case from state court and then win on Article III, you probably don’t get a dismissal. The Ninth Circuit held in Polo v. Innoventions International, LLC, 833 F.3d 1193 (9th Cir. 2016), that “the district court generally must remand the case to state court, rather than dismiss it.” TCPA claims can be litigated there, since the Supreme Court held in Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012), that “federal and state courts have concurrent jurisdiction over private suits arising under the TCPA.” In a removed case, I’d usually prefer to win on Rule 12(b)(6), where a win keeps the case in federal court and tests the claim itself.

Where each pleading attack stands in California federal courts

What to gather before the motion is due

You can’t decide which arguments are worth making until you know what your own records show, so start on these the day you’re served.

1. Put a litigation hold on call and text logs, dialer and platform data, and the consent records for every number named in the complaint.
2. Pull your internal do-not-call list and opt-out log, with the date of each request and the date it was honored.
3. Pull the National Do Not Call Registry scrub records for the campaign, including the date of the registry download you used.
4. Gather the vendor and lead-source contracts, call scripts, and any recorded or AI-voice message files, so you know whether an agency or prerecorded-voice argument is real.
5. Talk to a lawyer before you answer the complaint, contact the plaintiff, or make any settlement offer.

For claims involving prerecorded calls and the Do Not Call Registry, the firm’s California TCPA defense page sets out what the defense looks at first.

Questions businesses ask about TCPA motions to dismiss

Will the court give the plaintiff a chance to amend?

Usually, the first time. The Abante order states the Ninth Circuit rule: “Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment.” Both Abante and Davis allowed an amendment. Wilbor shows the exception: the court denied leave because the plaintiff couldn’t fix the defects “without contradicting his current allegations.” The value of a first motion is often what it forces into the amended complaint: a plaintiff who has to name the caller and date each call gives you a narrower case for discovery and class certification.

Can we attach our call records to a Rule 12(b)(6) motion?

Generally not. The Abante order states the rule: “Review is generally limited to the contents of the complaint,” with exceptions that include documents the complaint relies on and matters subject to judicial notice. Call logs rarely fit those exceptions. If your records show the plaintiff never received a call from you, an early summary judgment motion is usually the better vehicle.

Does a single call support a Do Not Call claim?

Not under § 227(c)(5), which requires more than one call within 12 months by or on behalf of the same entity. Section 227(b) has no such count. A single autodialed or prerecorded call to a cell phone, or a single prerecorded call to a residential line, can support a claim there unless consent, an emergency purpose, or an FCC exemption covers it. Read the complaint’s counts separately, because the elements and the defenses differ between the two subsections.

If your company is defending a TCPA complaint

If your company has just been served with a TCPA complaint, the first decision is which defects are worth a motion and which only teach the plaintiff to plead better. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded calls and the Do Not Call Registry. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act, 47 U.S.C. § 227. The Do Not Call rule is at 47 C.F.R. § 64.1200(c), as published in the eCFR through March 1, 2025. The FCC document is the Dish Network Declaratory Ruling, FCC 13-54, 28 FCC Rcd 6574 (2013).

The Supreme Court decisions are Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014); and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The pending Supreme Court case is McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226 (argued Jan. 21, 2025); see the question presented.

The Ninth Circuit decisions are Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), aff’d, 577 U.S. 153 (2016); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014); Polo v. Innoventions International, LLC, 833 F.3d 1193 (9th Cir. 2016); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Jones v. Royal Administration Services, Inc., 887 F.3d 443 (9th Cir. 2018); and Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022).

The district court orders are Abante Rooter & Plumbing v. Farmers Group, Inc., No. 17-cv-03315-PJH (N.D. Cal. Jan. 4, 2018); Canary v. Youngevity International, Inc., No. 5:18-cv-03261-EJD (N.D. Cal. Mar. 20, 2019); Wilbor v. GG Homes, Inc., No. 21cv226-LL-BGS (S.D. Cal. Mar. 22, 2022); Ewing v. Freedom Forever, LLC, No. 23-cv-1240-JLS-AHG (S.D. Cal. Jan. 19, 2024); and Davis v. RockLoans Marketplace, LLC, No. 23cv0134 DMS (BLM) (S.D. Cal. Nov. 26, 2024).

This post is general information about the Telephone Consumer Protection Act and related laws as of March 1, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.