Motion to Dismiss DENIED! Cell Phones Can Be Residential Numbers for DNC Claims
Facing a TCPA class action, it is tempting to try anything and everything to defeat the case on the pleadings. And, of course, there are sometimes ways to do so. But a court in North Carolina recently rejected two arguments that often do not work–particularly at the pleading stage: (1) cellular telephones are not “residential” for purposes of the TCPA; and (2) 47 CFR 64.1200(d) does not provide a private right of action. Boardman v. Order Green DOT Corp., NO. 3:21-CV-00174-FDW-DSC, 2021 U.S. Dist. LEXIS 156403 (W.D.N.C. August 19, 2021).
The cell-phones-are-not-residential argument is tricky because, well, people use cell phones as their “residential telephone.” To be fair, the Court recognized that the issue of “whether or not cellular telephones are ‘residential’ for purposes of the TCPA has not yet been addressed by the Fourth Circuit.” The Court also acknowledged that there is no “clear consensus” on the issue. But, reaching the more typical outcome, the Court held:
A cellphone may plausibly be alleged as residential for purposes of the TCPA.
The Court also rejected dismissal of the the claim to enforce 47 CFR 64.1200(d), which requires companies to maintain “a list of persons who require not to receive telemarking calls.” That result is also consistent with the weight of authority.
The Court left open the possibility that it would reconsider these arguments after discovery on a motion for summary judgment.