United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
William T. Lawrence, Senior Judge
cause is before the Court on the Defendant's Motion for
Judgment on the Pleadings (Dkt. No. 24). The motion is fully
briefed, and the Court, being duly advised
GRANTS the Defendant's motion for the
reasons set forth below.
reviewing a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), the Court applies the
same standard that is applied when reviewing a motion to
dismiss pursuant to Rule 12(b)(6). Pisciotta v. Old
Nat'l Bancorp., 499 F.3d 629, 633 (7th Cir. 2007).
The Court “take[s] the facts alleged in the complaint
as true, drawing all reasonable inferences in favor of the
plaintiff.” Id. The complaint must contain
only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). While there is no need for detailed factual
allegations, the complaint must “give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests” and “[f]actual allegations must
be enough to raise a right to relief above the speculative
level.” Pisciotta, 499 F.3d at 633 (citation
purposes of this motion, the facts alleged in the Complaint
are taken as true.
Plaintiff alleges that, beginning in approximately August
2015, the Defendant began repeatedly called her cellular
telephone with an automated telephone dialing system
(“ATDS”) regarding her student loans. In either
February or March 2016, the Plaintiff told the Defendant to
stop calling, yet the Defendant continued to do so. The
Plaintiff told the Defendant to stop calling several more
times in 2016 and 2017, but the calls continued through the
time of the filing of the Complaint. The Plaintiff argues
that the Defendant's actions violated the Telephone
Consumer Protection Act (“TCPA”). The Defendant
moves for judgment on the pleadings on the ground that the
Bipartisan Budget Act of 2015, P.L. 114074, Nov. 2, 2015, 129
Stat. 584 (the “2015 Budget Act”) exempts from
liability “calls made to cellular telephone numbers in
order to collect a debt owed to or guaranteed by the United
States.” Dkt. No. 25 at 2.
TCPA in relevant part, prohibits “mak[ing] any call
(other than a call made for emergency purpose or made with
the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice” to “a cellular telephone
service . . . unless such call is made solely to collect a
debt owed to or guaranteed by the United States.” 47
U.S.C. § 227(b)(1)(A)(iii). The language “unless
such call is made solely to collect a debt owed to or
guaranteed by the United States” was added by the 2015
Budget Act and went into effect November 2, 2015. 129 Stat.
584. The Defendant argues that “because the potentially
actionable calls in this case were made after ‘February
or March 2016,' the 2015 Budget Act amendment bars [the
Plaintiff's claim], as a matter of law.” Dkt. No.
25 at 4.
Plaintiff concedes that the issue before the Court is a
narrow one. According to the Plaintiff:
For the purposes of this motion, the parties do not dispute
that [the Defendant] called [the Plaintiff] on her cellular
telephone with an ATDS and prerecorded voice, that [the
Plaintiff] requested the calls to stop, or that the calls
related to the collection of a federally-guaranteed student
loan. Thus the only question before the Court is whether the
 Budget Act is an absolute defense to [the
Plaintiff's] claim for relief.
Dkt. No. 32 at 1.
arguing that the 2015 Budget Act is not a defense, the
Plaintiff argues that “subsequent FCC rulemaking and
case law have clarified that [the relevant] provision is an
extension of the defense of prior express consent,
establishing that qualifying callers have consent to call as
a matter of law until it is revoked.” Dkt. No. 32 at 3.
According to the Plaintiff, “[t]he [2015 Budget] Act
directed the FCC to ‘prescribe regulations to implement
the [Budget Act's] amendments' and to adopt rules
regarding limitations on such calls, ” Dkt. No. 32 at 3
(quoting Cooper v. Navient Solutions., LLC, No.
8:16-cv-3396, 2017 WL 1424346, at *1 (M.D. Fla. Apr. 21,
2017)), and was intended to function in a burden-shifting
manner, similar to other exceptions “common in TCPA
law, ” id.
support its argument, the Plaintiff relies heavily on
Cooper, a case from the United States District Court
for the Middle District of Florida, decided April 21, 2017.
Cooper in turn relies heavily on an August 11, 2016,
Report and Order (the “August 2016 R & O”),
which would have limited the number of calls which could be
made to a debtor without the debtor's consent. 2017 WL
1424346, at *1 (citing In the Matter of Rules and
Regulations Implementing the Telephone Consumer Protection
Act of 1991, 31 FCC Rcd. 9074 (Aug. 11, 2016)). However,
the August 2016 R & O was not to go into effect until
“60 days after the Commission's publication of a
notice in the Federal Register, which will announce approval
of portions of the rules requiring approval by [the Office of
Management and Budget] under the [Paperwork Reduction Act of
1995].” 31 FCC Rcd. at 9101. This, however, does not
seem to have occurred, and the ...