iIt’s the oldest—and perhaps most effective—trick in the TCPA book.
A would-be TCPA Plaintiff lists their phone number as a business contact line on a website or as part of a business directory. Except, they claim, the number is not really their business number—it doubles as a residential line as well. So when a marketer calls to offer a product or service to the business the subscriber to the phone line sues the caller for violating the TCPA. (Business numbers are not protected by the DNC rules and may be called for marketing without consent even if listed on the DNC.) This trick is even more effective when the number at issue is a cell phone—then any impetuous caller contacting the line might violate both the TCPA’s DNC rules and its ATDS/pre-recorded call restrictions. Double jeopardy indeed.
It is, of course, impossible for a caller to avoid this trick in most instances because there is simply no way for a marketer to know whether a business number is *really* a business number or might actually be used in dual fashion, as the recent case of Savett v. Great Am. Power, LLC, CASE NO. 1:20 CV 42, 2020 U.S. Dist. LEXIS 130570 (N.D. Oh. July 23, 2020) demonstrates.
Now lest I find myself sued in some goofy lawsuit, I should note that I am not saying Savett was trying to trick anyone into calling his phone number to set up a lawsuit. I’m just saying the case demonstrates how such a set up can work–and we know anecdotally of many instances where a repeat-player (not Savett) did do just that.
Indeed, I have no idea why Savett listed his number as a business number—if he even did. But the Defendant in that suit brought forth a bunch of evidence suggesting Savett indeed held out his phone number as a business contact line for his law firm. For his part, Savett apparently did not deny that his number was used in such a fashion. Indeed, he admitted that he used the line for professional purposes, but he claimed he also simultaneously used the number as his primary residential line. And that is what makes this issue so tricky (and the Savett case so compelling.) The Plaintiff literally admitted he used the number for businesses purposes—but he still won the motion.
Here’s what happened. Defendant in Savett moved for summary judgment arguing that Plaintiff’s actions of holding out his number as a business number necessarily thwarted any DNC protection. The Court disagreed. Noting that the FCC has refused to exclude dual use numbers from TCPA protection, the Court determined that a number that is used as a residential line—even if only part of the time—is still protected from unwanted solicitation calls if it is on the DNC list. Importantly, the Court did not decide the ultimate issue of whether the number was “residential enough” for TCPA purposes, but did determine that the Defendant’s evidence that Plaintiff held his number out as a business number was not, standing alone, sufficient to warrant judgment.
Translation: a TCPA plaintiff can hold his number out to the public as a business number and still force a jury trial on whether or not the number might actually (secretly?) still be a residential line for DNC purposes. How deflating.
And that, good friends, is just one reason why the TCPA is so impossibly difficult to comply with. This is a real wolf-in-sheeps-clothing sort of scenario and TCPAWorld dwellers need to keep a sharp eye out. Always happy to discuss some solutions.
