Southern District of New York Denies Motion to Dismiss Because Plaintiff Sufficiently Alleged That He Was a “Residential Subscriber”

The TCPA’s Do Not Call (DNC) regulations prohibit telephone solicitations to “residential telephone subscriber[s]” who have “registered [their] telephone number on the national do-not-call registry.” See 47 C.F.R. § 64.1200(c)(2). However, as we noted in a recent post, several district courts have found that the term “residential telephones,” as used in the DNC regulations, may include cell phones under certain circumstances, such as when cell phones are used primarily for “personal, family, and household” matters. See Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022) (collecting cases). Nonetheless, other courts have rejected this proposition. See id. at *2 (citing Callier v. GreenSky, Inc., EP-20-CV-00304, 2021 WL 2688622, at *6 (W.D. Tex. May 10, 2021)).

In Rose v. New TSI Holdings, Inc., the Southern District of New York recently held that a plaintiff alleged sufficient facts to survive a motion to dismiss arguing that plaintiff’s cell phone could not qualify as a “residential telephone.” No. 21-CV-5519, 2022 WL 912967 (S.D.N.Y. Mar. 28, 2022).  Specifically, plaintiff alleged that he received twelve unsolicited calls from 2018 through 2021 after he visited Boston Sports Club even though his number had been listed on the DNC Registry since 2004. He alleged that he received the messages even after he told defendant to stop calling/texting him at least five times, and that some of the calls included identical prerecorded promotional messages.

Defendant’s motion to dismiss argued, in part, that cell phones are not “residential telephones.” See Def.’s Reply to Pl.’s Opp’n to Mot. to Dismiss, Rose v. New TSI Holdings, Inc., No. 21-CV-5519, at 6–8 (S.D.N.Y. Sept. 15, 2021), ECF No. 24. In the alternative, defendant argued that even if some cell phones can constitute “residential telephones,” plaintiff failed to allege sufficient facts to show that he used his cell phone for “residential purposes.” Id. at 8–9. The district court rejected both arguments. Although plaintiff had not “specifically allege[d] that his cellphone number was a residential one,” the court found it sufficient that plaintiff alleged that his cell phone (1) “was a personal number that he did not use for business purposes” and (2) had “been listed on the DNC Registry since 2004.” Rose, 2022 WL 912967, at *2 (citing In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14,014, 14,111–16 (2003)).

Defendant also argued that plaintiff failed to allege sufficient facts to state a claim that: (1) he received pre-recorded messages; (2) defendant was responsible; or (3) treble damages were appropriate. The district court rejected each of these arguments. First, the court determined that plaintiff had plausibly alleged that the messages he received were prerecorded. Id. The court noted that plaintiff alleged that at least two of the messages were identical and provided a transcript of those messages. Id. The court also reasoned that plaintiff alleged that his phone never rang when he received the prerecorded messages, which the court held was “potential evidence” that he received “a kind of prerecorded message known as ‘ringless voicemails.’” Id. Second, the court determined that plaintiff plausibly alleged that defendant was responsible for the calls by alleging that defendant owns Boston Sports Club and that the messages offered promotions for Boston Sports Club. Id. Finally, the court rejected defendant’s argument that plaintiff’s claim for treble damages (available for willing or knowing violations) was insufficiently alleged. The court cited plaintiff’s contention that he asked defendant to stop calling him at least five times, including in an email that said “STOP CALLING AND TEXTING ME.” Id. at 3.

The Rose decision highlights that the specific facts alleged in a pleading may be critical to a court’s assessment of whether a cell phone can be deemed to be a “residential telephone” under the prevailing DNC regulations. We will continue to monitor case law addressing the applicability of the DNC regulations to cell phones.

Matthew M. Morrissey

About the Author: Matthew M. Morrissey

Matthew Morrissey focuses his practice on high-stakes litigation. He frequently defends clients facing class actions arising under federal and state consumer protection and privacy laws. Matt also represents clients in complex commercial disputes, securities litigation and other financial services matters pending in courts across the country. Matt develops business-focused resolution strategies for clients in all phases of the litigation process. He has achieved significant victories in contentious disputes at both the trial court level and on appeal. He has also obtained highly favorable results in private arbitration and mediation proceedings.

Simonne Brousseau

About the Author: Simonne Brousseau

Simonne Brousseau assists and advocates for clients as they navigate the complex landscape of data privacy policy. As a summer associate for the firm, Simonne analyzed data protection agreements for regulatory compliance, drafted data privacy notices and supported data privacy consortium clients in the preparation of publications. She also served as an intern for the U.S. Department of Justice’s Office of Enforcement Operations, where she conducted legal research and drafted memoranda analyzing the application of DOJ policy guidelines. From 2020-2021, Simonne clerked for U.S. Magistrate Judge Joel C. Hoppe in the Western District of Virginia.

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