Refresher on TCPA Liability for Calls to Cell Phones: 1) The DNCR Provision Only Prohibits Calls to Residential Lines, But; 2) Using an ATDS without Prior Consent is Prohibited to Cell Phones Even for Business Purposes
It remains a source of common confusion here in TCPAWorld. But not understanding the TCPA rules surrounding business to business calls can land you in a world of hurt. Let’s review.
1) The TCPA’s DNC Provisions Only Apply to Calls to Residential Numbers;
Per the TCPA, no entity shall initiate any telemarketing to any residential number, registered on the National Do Not Call Registery (“DNCR”). See 47 C.F.R. §§ 64.1200(c)-(e). Unless, (1) the telemarketer has an established business relationship with the consumer whose number is being called, or (2) the telemarketer has the consumer’s written consent to be called. See 47 U.S.C. § 227(a)(4).
Residential number does not just mean landlines, however. It includes cell phones that are used for personal purposes. See 47 U.S.C. § 227(e). Whether a phone is used for residential purposes is determined on a case-by-case basis depending on who is using it, and for what purpose. Notably, Courts have shown a willingness to consider even business cell phones to be a residential line in rare instances. See e.g. Shelton v. Nat’l Gas & Elec., LLC, 2019 U.S. Dist. LEXIS 59235, *11, 2019 WL 1506378. (Denying Defendant’s motion to dismiss for lack of standing because “Although [the professional serial] Plaintiff’s website lists his cell phone number as his business number, and Plaintiff himself admitted in an affidavit that he uses his cell phone number for his judgment recovery business, it would be premature to conclude that Plaintiff’s only purpose in using his cell phone is to file lawsuits.”). Without question, however, a cell phone number used for business can be subject to the DNCR provision.
2) The TCPA’s ATDS/Pre-Recorded Voice Restrictions Apply to All Cell Phones, Regardless of Whether they Are Residential or Business Lines
And now for the confusing part. The TCPA’s ATDS restrictions are not limited to calls to residential cell phones. Thus, if your company is provided with a cell phone number for business, then you might (erroneously) think that there is no TCPA liability for calling that number with an automatic telephone dialing system since the number was provided for business purposes. This is not an uncommon misconception. In reality, however, the TCPA, specifically, 47 U.S.C. § 227(b)(1)(A)(iii), prohibits any call or text message to a cell phone using an ATDS, as well as artificial or prerecorded voice calls, unless, the call is for emergency purposes, or made with the prior express consent of the called party. There have been more than a handful of recent cases spinning out of a Defendant’s confusion about these rules. Understanding when a business cell phone can and cannot be called is essential to survival in the sometimes harrowing TCPAWorldscape.
Authored by Jason M. Ingber