October 16, 2021

Volume XI, Number 289

Advertisement
Advertisement

October 15, 2021

Subscribe to Latest Legal News and Analysis

October 14, 2021

Subscribe to Latest Legal News and Analysis

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-DSC2021 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.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 243
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
Advertisement
Advertisement
Advertisement