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Telephone Science Corp. v. Asset Recovery Solutions, LLC

United States District Court, N.D. Illinois, Eastern Division

August 8, 2016

TELEPHONE SCIENCE CORPORATION, Plaintiff,
v.
ASSET RECOVERY SOLUTIONS, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Court Judge.

         Plaintiff Telephone Science Corporation (“TSC”) filed its Second Amended Complaint on February 9, 2016, alleging that Defendant Asset Recovery Solutions, LLC (“ARS”) willfully and knowingly violated the Telephone Consumer Protection Act, 42 U.S.C. § 227, et seq. (“TCPA”). (See generally R.77). Before the Court are several motions relating to the Second Amended Complaint: (1) ARS’ Rule 12(b)(1) motion to dismiss for lack of Article III standing (R.81); (2) ARS’ Rule 12(b)(6) motion to dismiss for failure to state a claim (R.84); and (3) ARS’ Rule 15 motion to strike 297 claims added without leave of the Court (R.87).

         For the following reasons, the Court denies ARS’ Rule 12(b)(1) motion (R.81) and denies as moot ARS’ motion to strike. (R.87). The Court grants ARS’ Rule 12(b)(6) motion and dismisses this case with prejudice. (R.84).

         BACKGROUND

         I. Robocalls & TSC’s “Nomorobo” Service

         TSC operates a service called “Nomorobo, ” designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission (“FTC”) refers to as “robocalls”-calls made with either an automatic telephone dialing system (“ATDS”) or with a prerecorded or artificial voice. (R.77, ¶¶ 5-6). In 2013, the FTC declared Nomorobo a winner of its contest to “design a system to stop unsolicited telemarketing calls before the calls can ring through to the subscriber of the called telephone number.” (Id. ¶ 7). To date, Nomorobo has helped consumers “avoid over 64 million unwanted robocalls.” (Id. ¶ 9). Specifically, TSC maintains a “honeypot” of telephone numbers to which TSC subscribes. (Id. ¶¶ 10-12). Nomorobo analyzes calls placed to TSC’s honeypot numbers using a specialized algorithm, enabling it to “detect high frequency robocalling patterns and distinguish between calls placed by robocallers and calls placed by non-robocallers.” (Id. ¶¶ 13, 8). Consumers and businesses subscribe to Nomorobo’s call-blocking services for a fee. (R.115, TSC Response to ARS’ Mot. to Take Judicial Notice; see also R.113, R.116).[1] These users choose to route their incoming calls to both their personal phones and the Nomorobo server, using simultaneous ring technology. “If Nomorobo determines that it is a robocaller, Nomorobo answers the call on behalf of the user.” (R.82-3, TSC Ltr. to FCC). The robocaller, however, is “presented with an audio CAPTCHA [Completely Automated Public Turing Test to tell Computers and Humans Apart]. If the caller passes the test and proves they are human, the call is allowed through. If they fail, Nomorobo hangs up the call.” (R.82-4, Twilio Customer Stories at 2). Nomorobo either blocks or allows the call within 200 milliseconds of its receipt. (Id.).

         ARS is an asset recovery management and debt purchasing company that uses a “predictive dialer” in connection with its business. (R.77, Second Am. Compl. ¶¶ 15-17). A “predictive dialer” is “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” (Id. ¶ 18). A predictive dialer is an ATDS within the meaning of the TCPA. (Id. ¶ 48).

         II. The Alleged TCPA Violations & Incurred Expenses

         TSC alleges that, around March 2014, ARS began calling telephone numbers in the TSC honeypot (“TSC Numbers”) using a predictive dialer. (Id. ¶¶ 19-23). TSC “was the subscriber to each TSC Number [that ARS] called at the time of the call, ” and TSC “continues to subscribe to each TSC Number.” (Id. ¶¶ 24-25). TSC never consented to these calls. (Id. ¶¶ 26-27). TSC does not solicit or otherwise entice incoming calls to TSC Numbers. (Id. ¶¶ 33-34). Each TSC Number is assigned to a voice over Internet protocol (“VoIP”) telephone service. (Id. ¶ 28). The VoIP service provider, Twilio, Inc. (“Twilio”), assesses (i) a monthly per-line charge for each TSC Number, as well as (ii) a per-minute charge for each inbound call that TSC answers. (Id. ¶¶ 28-30; see also R.108, Am. Foss Decl. ¶¶ 3, 5-6).

         TSC alleges that, between March 2014 and February 2016, ARS placed approximately 12, 240 robocalls to TSC Numbers from ten telephone numbers using a predictive dialer. (Id. ¶ 37). TSC has answered approximately 747 of these robocalls. (Id. ¶¶ 39-40; R.77-1, Exhibit A, “ARS’s Answered Calls to TSC Numbers”). TSC only began answering these calls-among other robocalls-on May 13, 2015. (R.108, Am. Foss Decl. ¶ 13). According to TSC’s founder, Aaron Foss (“Foss”), “for each answered robocall, including but not limited to the robocalls placed by ARS to TSC telephone numbers, Twilio charged TSC a per-minute charge in the amount of $0.0075.” (Id. ¶ 14). Accordingly, the “total per-minute charges that TSC incurred as a result of the robocalls that ARS placed to TSC, which TSC answered, during the months May 2015 through January 2016 is $5.60.” (Id. ¶ 20).[2]

         TSC now seeks relief under the TCPA “based on past and future ARS robocalls to TSC Numbers, which TSC answered (or will answer) and for which TSC has incurred (or will incur) per-minute charges.” (R.77, Second Am. Compl. ¶¶ 41-42, 52). Specifically, TSC alleges that ARS “willfully and knowingly violated 47 U.S.C. § 227(b)(1)(A) on multiple and separate occasions by using an ATDS to call TSC at a telephone number assigned to a service for which TSC is charged for the call without TSC’s prior express consent.” (Id. ¶ 70). TSC prays for (i) injunctive relief to prevent ARS from placing further telephone calls to TSC Numbers, and (ii) a judgment for statutory damages pursuant to 47 U.S.C. § 227(b)(3) for “each and every call ARS made in violation of the TCPA.” (Id. ¶ 72).

         III. Procedural History

         In August 2015, ARS moved to dismiss TSC’s original complaint pursuant to Rule 12(b)(6) and to stay the proceedings pending the Supreme Court’s decision in Spokeo, Inc. v. Robins, 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (U.S. Apr. 27, 2015) (No. 13-1339). (R.17, R.24). During the hearing on those motions, counsel for ARS requested “limited jurisdictional discovery” with respect to a potential Rule 12(b)(1) challenge. (R.43-1, August 2015 Hearing Tr. at 3). Specifically, counsel for ARS represented that their “research” had revealed that: (i) calling some TSC Numbers identified in the original complaint resulted in a busy signal, raising a question “as to whether the calls are even answered;” and (ii) about “90 percent of the [TSC] phone numbers trace back to consumers” rather than to TSC. (Id.). Counsel for ARS thus requested “some records” to establish that the phone numbers “do, in fact, trace back.” (Id. at 4). Counsel for ARS also requested the opportunity to “further explore” the “payment issue” with respect “to the VoIP and the charges, ” noting that a Fourth Circuit case to which TSC had cited in the First Amended Complaint had no “precedential value[.]”[3] (Id.). The Court permitted “limited discovery” on jurisdictional issues. (R.28). Subsequently, TSC produced to ARS: (i) the VoIP Service Agreement between TSC and Twilio; (ii) an addendum to the VoIP Service Agreement; (iii) an August 17, 2015 letter from Twilio, which “confirms that TSC is the subscriber to each telephone number identified” in the complaint; and (iv) Twilio invoices “reflecting all per-minute charges TSC incurred in May, June, July, and August of 2015, ” as well as receipts “for TSC’s payments of the aforementioned invoices.” (R.43-2, Menditto Decl. to Mot. to Compel ¶¶ 2-6).

         In September 2015, ARS moved to compel TSC to respond to certain interrogatories and document requests. (R.39). After hearing the parties’ arguments[4] and reviewing their briefs, the Court denied ARS’ motion. The Court, in particular, denied Interrogatory No. 10 and Document Request No. 13[5] as premature, noting that “some of these requests will be very appropriate when we get to the substantive part of the case, but are not appropriate for the limited jurisdictional discovery that the Court granted in this case.” (R.51-1, Sept. 2015 Hearing Tr. at 11-13). ARS then moved to dismiss the First Amended Complaint under Rule 12(b)(1) and Rule 12(b)(6). (R.45, R.47).

         Meanwhile, the Court granted ARS’ motion to stay the proceedings pending the Supreme Court’s decision in Spokeo (R.71), reasoning, in part, that TSC’s complaint allegations were “not limited to those calls that generated the alleged monetary damage.” Rather, TSC sought relief for all calls that ARS placed to TSC, including calls that TSC did not answer and for which TSC did not incur a charge. (Id. at 5-9). In light of the stay, the Court dismissed ARS’ pending Rule 12 motions as premature. (R.70). Thereafter, TSC moved the Court “to enter an order lifting the stay in this case, granting TSC leave to drop with prejudice its claims based on unanswered calls[.]” (R.72). The Court granted TSC’s motion, ordering TSC to file an amended complaint. (R.75; see also R.93-1, Jan. 2016 Hearing Tr. at 4).[6] On February 9, 2016, TSC filed the Second Amended Complaint. (R.77).

         LEGAL STANDARD

         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under federal pleading standards, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a complaint, the Court must accept all “factual allegations as true, and must draw all reasonable inferences in the plaintiff’s favor.” Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim, ” however, “are not entitled to this presumption” of truth. Id.

         Additionally, in ruling on a Rule 12(b)(1) motion to dismiss for lack of standing, “the district court must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff’s favor.” Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citing Ret. Chicago Police Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)). District courts may, however, “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008) (citation and quotation omitted). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing the required elements of standing[, ]” including (i) injury in fact; (ii) causation; and (iii) redressability. Lee, 330 F.3d at 468 (citation and quotation omitted). “If standing is challenged as a factual matter, the plaintiff must come forward with ‘competent proof’-that is a showing by a preponderance of the evidence-that standing exists.” Id. An “erroneous legal conclusion, ” however, does not constitute a “factual challenge.” Id. at 469.

         ANALYSIS

         I. Rule 12(b)(1) Motion

         Under Rule 12(b)(1), a court must dismiss a claim if it lacks subject-matter jurisdiction over it. See State of Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998) (“Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further”). As the Supreme Court has instructed, the elements of Article III standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, [and] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

         A. Factual Versus Facial Challenge

         ARS’ chief argument is that “TSC, faced with a factual challenge to jurisdiction, was required to prove by a preponderance of the evidence that this Court has jurisdiction to hear the case. TSC failed to do so, and its case should be dismissed.” (R.103, 12(b)(1) Reply Br. at 1-2). According to ARS, its factual challenge required TSC to “prove a charge was incurred by it with respect to each and every claim asserted by it” - that is, to produce evidence conclusively tying Twilio’s per-minute charges to “any of the 185 telephone numbers or 747 calls at issue in [the] Second Amended Complaint[.]” (Id.). The Court disagrees with ARS’ characterization of TSC’s burden at this stage of the litigation.

         The Second Amended Complaint alleges that (i) TSC answered approximately 747 ARS robocalls, and (ii) TSC incurred a per-minute charge for each ARS robocall. (R.77, ¶¶ 39-41; R.77-1, Exhibit A, “ARS’s Answered Calls to TSC Numbers”). ARS argues that no presumptive truthfulness attaches to these allegations because it has made a “factual challenge” to standing. ARS ignores, however, that it-not TSC-bears the initial burden of proffering “evidence” to call TSC’s standing into question. See Apex, 572 F.3d at 444 (“Sears produced evidence calling Apex’s standing into question-a letter indicating that Apex had sold and assigned all rights in its accounts receivable to CIT. Once such evidence is proffered, the presumption of correctness that we accord to a complaint’s allegations falls away . . .”) (citation and quotation omitted); see also Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 685 (7th Cir. 1998) (“The presumption of correctness that we accord to a complaint’s allegations falls away on the jurisdictional issue once a defendant proffers evidence that calls the court’s jurisdiction into question”); Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir. 1986) (only when “facts place the district court on notice that the jurisdictional allegation probably is false” is the court “duty-bound to demand proof of its truth”).

         Here, ARS has failed to identify “external facts” calling into question whether TSC incurred an out-of-pocket expense for each answered ARS robocall. See Apex, 572 F.3d at 444. During the August 2015 hearing, counsel for ARS represented that their “research” raised some question as to whether the TSC Numbers, in fact, traced back to TSC. (R.43-1, Aug. 2015 Hearing Tr. at 4). The Court granted limited jurisdictional discovery against this factual challenge. (R.28). ARS’ present standing challenge, however, does not concern whether TSC was the “subscriber” to each TSC Number. Rather, ARS challenges the truthfulness of TSC’s “incurred expense” allegation. (R.84, 12(b)(1) Opening Br. at 2, 8-10; R.103, 12(b)(1) Reply Br. at 3-6). While ARS may have had some questions regarding the “payment issue, ” (R.43-1, Aug. 2015 Hearing Tr. at 4), ARS did not then-and does not now-set forth “evidence calling [TSC’s] standing into question” with respect to its alleged injury. See Apex, 572 F.3d at 444; Garecht v. Prof’l Transp., Inc., No. 14-CV-0378-SMY-DGW, 2015 WL 3862723, at *2 (S.D. Ill. June 22, 2015) (“At this juncture, the Court is not persuaded that Plaintiff’s alleged standing is false”). ARS proffers no evidence, for example, that it was “unable to locate any account tied to the [telephone number at issue], because it had never placed a call to such number” or that “no such number existed in its [debt collection] system.” See Wallace v. Enhanced Recovery Co., LLC, No. 7:13-CV-124-FL, 2015 WL 5455937, at *3, 5 (E.D. N.C. Sept. 16, 2015), aff’d sub nom, No. 15-2194, 2016 WL 3402539 (4th Cir. June 21, 2016) (citing affidavit evidence).[7]Absent a “true factual dispute, ” the Court need not “demand proof of jurisdiction.” Apex, 572 F.3d at 446; see also Leung v. XPO Logistics, Inc., No. 15 C 03877, 2015 WL 10433667, at *3 (N.D. Ill.Dec. 9, 2015) (“Although the burden to prove jurisdiction ultimately rests with Leung, he only needs to come forward with evidence (at least at this early stage of the case) if XPO first produces something suggesting that Leung lacks standing”); Kanzelberger, 782 F.2d at 777 (“We do not suggest that the district court . . . must always or even often conduct an inquest on jurisdiction; but certainly if deficiencies in the pleadings, or facts brought out in pretrial discovery or at trial, fairly shriek that there is no federal jurisdiction, the district judge must conduct whatever supplementary factual proceedings are necessary to resolve the doubt”).

         The Court, thus, accepts the Second Amended Complaint’s “injury-in-fact” allegations as true. See Apex, 572 F.3d at 444-46. These allegations “plausibly suggest” that TSC incurred- and paid for-per-minute charges based on ARS robocalls, supporting injury-in-fact sufficient for Article III standing. See Silha v. ACT, Inc., 807 F.3d 169, 173-74 (7th Cir. 2015) (clarifying “the standard for facial challenges to subject matter jurisdiction under Rule 12(b)(1)”); Doe v. Chao, 540 U.S. 614, 627 n.12 (2004) (out-of-pocket expenses “suffice to qualify under any view of actual damages”). Even if the law required more of TSC in this case, it has satisfied its “burden of proof” at this stage of the litigation. See Lujan, 504 U.S. at 561. Taken together, (i) the Second Amended Complaint, (ii) the Foss Declaration, (iii) the VoIP Service Agreement, (iv) the Twilio invoices, and (v) TSC’s invoice payment receipts, all support the existence of an injury.

         The Court recognizes that the Twilio invoices do not actually link any charge to any inbound telephone number. (R.108, Am. Foss Decl. ¶ 16 (noting that the Twilio invoices neither “break out each individual telephone number for which TSC incurs a per-line or a per-minute charge” nor “break out each per-minute charge on a per-call basis”)). Such detailed call records or equivalent evidence, however, are not required at this stage of the litigation. (R.51-1, Sept. 2015 Hearing Tr. at 11-12 (“some of these requests will be very appropriate when we get to the substantive part of the case, but are not appropriate for the limited jurisdictional discovery that the Court granted in this case”)). The Foss Declaration and other jurisdictional record evidence, moreover, support TSC’s “injury-in-fact” allegations. (R.108, Am. Foss Decl. ¶¶ 18-19 (averring that the “total number of answered minutes” and “total per-minute charges” for TSC for the months May 2015 through January 2016 includes ARS robocalls); R.77-1, Exhibit A to the Second Am. Compl., “ARS’s Answered Calls to TSC Numbers” (outlining the date, originating ARS telephone number, and TSC terminating number of each telephone call placed by ARS, which TSC answered, from May 13, 2015 through February 4, 2016)). As TSC has explained, its “software identifies (a) the ARS telephone number from which the robocall originated, (b) the TSC telephone number that ARS called, and (c) the date and time of the robocall[.]” (R.115, TSC Response to ARS’ Mot. to Take Judicial Notice at 2). In light of this evidence, TSC has met its burden of “establishing the required elements of standing.” See Lee, 330 F.3d at 468.

         B. Bare Statutory Violation Analysis

         ARS next argues that the TCPA provision on which TSC relies-the “call-charged” provision-requires a showing of “actual damages” in order to establish “even a bare bones statutory violation.” (R.82, 12(b)(1) Opening Br. at 14) (citing 47 U.S.C. § 227(b)(1)(A)(iii) (prohibiting the use of any ATDS or artificial or prerecorded voice to make any call to “any telephone number assigned to . . . any service for which the called party is charged for the call”)). According to ARS, because TSC has failed to prove that it incurred any charge based on any ARS robocall, it has “failed to establish standing even based on a bare statutory violation.” (Id. at 16). This argument fails for the same reasons set forth above with respect to ARS’ related “burden of proof” challenge.

         C. Self-Infliction Analysis

         Lastly, ARS argues that TSC’s alleged injury is “self-inflicted” and, therefore, insufficient to establish constitutional standing. The Second Amended Complaint alleges that ARS initiated the phone calls at issue. (R.77 at ¶¶ 22, 33-38). Because ARS initiated these calls, the Court cannot say that TSC’s role in answering the calls severed the causal connection between conduct and injury, depriving TSC of Article III standing. See Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2014 WL 320303, at *6-7 (S.D. Fla. Jan. 29, 2014) (“Patheon ignores the fact that it threw the unlawful antirust punch that started the causal chain in Procaps’ antitrust injury”).

         To establish Article III standing, a plaintiff must show that he sustained an injury that is “fairly traceable to the challenged action of the defendant.” Silha, 807 F.3d at 173. An injury is not “fairly traceable” where it “is so completely due to [a complainant’s] own fault as to break the causal chain” between the injury and the defendant’s conduct. See Petro-Chem Processing, Inc. v. E.P.A., 866 F.2d 433, 438 (D.C. Cir. 1989) (Ginsburg, J.); see also 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3531.5 (3d ed. 2008) (“Standing is defeated only if it is concluded that the injury is so completely due to the plaintiff’s own fault as to break the causal chain”). Litigants “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1151 (2013).

         ARS-attempting to distinguish Procaps-argues that TSC (i) knowingly sought out the assignment of the “dirtiest, nastiest” robocalled numbers, and (ii) intentionally altered its business practice by answering these calls, “solely to manufacture an injury” in this case. (R.84, 12(b)(1) Opening Br. at 11-14). ARS likens this case, instead, to Big Blue Capital Partners, LLC v. Recontrust Company, No. 6:11-CV-06368-AA, 2012 WL 1605784 (D. Or. May 4, 2012). In Big Blue Capital Partners, however, the plaintiff lacked standing because the injury it sustained in purchasing an encumbered property-after non-judicial foreclosure proceedings had commenced-was not traceable to the defendant. Id. at *5. Rather, the plaintiff created its own injury by deciding to purchase a property in foreclosure. Id. Conversely, here, TSC’s decision to subscribe to troubled phone numbers-while likely increasing the probability of an injury- did not itself cause the injury in question. No injury would have occurred absent the phone calls initiated by ARS. See ACLU v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (Posner, J.) (finding a constitutional injury notwithstanding the argument that “the plaintiffs have inflicted this cost on themselves and can avoid it by continuing to follow their accustomed routes and shrugging off the presence” of the religious display at issue). For this reason, the Court cannot say that TSC’s practice of answering robocalls since May 2015 constitutes “an unreasonable decision . . . to bring about a harm that [it] knew to be avoidable.” St. Pierre v. Dyer, 208 F.3d 394, 403 (2d Cir. 2000). Because TSC’s alleged injuries “were not entirely self-caused, ” Procaps, 2014 WL 320303 at *8, but rather are “fairly traceable” to ARS’ alleged conduct, the Court declines to dismiss the Second Amended Complaint for lack of Article III standing. See Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 517-18 (7th Cir. 2010) (no Article III standing with respect to an “entirely self-inflicted” injury resulting “solely” from plaintiff’s own conduct).

         II. Rule 12(b)(6) Motion

         The Court next addresses ARS’ Rule 12(b)(6) challenge. ARS seeks to dismiss this case for the following reasons: (1) TSC is outside the TCPA’s “zone of interests;” (2) TSC has waived the right not to receive robocalls by intentionally seeking out such calls; (3) TSC has failed to plead that ARS placed the alleged calls using an automated dialer without human intervention; (4) TSC has failed to plead that its VoIP service is wireless, thus falling outside Section 227(b)(1)(A)(iii)’s purview; and (5) TSC has failed to plead that ARS “willfully or knowingly” violated the TCPA, thus barring its demand for treble damages. (R.84).

         A. “Zone of Interests” Analysis

         TSC brings suit under 47 U.S.C. § 227(b)(1)(A)(iii), which provides:

(b) Restrictions on use of automated telephone ...

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