Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds

Last week, the U.S. District Court for the Northern District of Texas held that mobile phones may qualify as “residential telephones” when used (as the Complaint alleged) primarily for “personal, family, and household use,” and thus be subject to the TCPA’s do-not-call rules (47 C.F.R. §§ 64.1200(c) & (d)).  This issue has sewn disharmony among federal district courts and may draw attention from higher courts.  But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), that have agreed that calls specifically directed to persons on a pre-produced list (like plaintiff) are not calls made using a “random or sequential number generator” and thus are not subject to the TCPA’s prior express consent requirement for calls made using an ATDS.

In Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022), the plaintiff alleged that, over the course of last year, he received eight unsolicited phone calls and six SMS text messages on his cell phone from a number he didn’t recognize.  Hunsinger picked up one of the calls and spoke with a representative for the defendant, to whom Hunsinger gave his email address.  Hunsinger subsequently received several calls and texts from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction.  These calls and texts were sent using an ATDS, Hunsinger alleged.  At all relevant times, Hunsinger’s number was on the national DNC list.  Id. at *1.

Alpha Cash argued that Hunsinger failed to plausibly plead a violation of the DNC rules because those regulations apply only to “residential” telephones, which doesn’t include cell phones.  Hunsinger responded that, as with landline phones, the DNC rules apply to any cell phone that is used for “residential” purposes, such as personal and household purposes.  Id. at *2.

The court agreed with Hunsinger that the DNC rules apply to personal cell phones.  The court emphasized that 47 C.F.R. § 64.1200(e) states that the DNC rules cover “any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”  In a 2003 order implementing subsection (e), the court recounted, the FCC reasoned that “it is more consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections” and that wireless subscribers may participate in the national DNC list.  Id. (quoting In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14,014, 14,039 (2003)).

Several district courts have interpreted “residential telephones” to include personal mobile phones, the court also noted.  See id. (collecting cases).  However, the court acknowledged that at least one district court has reached the opposite conclusion—that cell phones, even personal ones, are beyond the scope of the DNC rules.  See id. (citing Callier v. GreenSky, Inc., EP-20-CV-00304, 2021 WL 2688622, at *6 (W.D. Tex. May 10, 2021)).  The court said that it would reconsider its position if subsequent developments in the law so warrant.  Id. at *2 n.2.

Since Hunsinger alleged that his cell phone is used primarily for “personal, family, and household use,” the court found it could reasonably infer that the phone was a “residential telephone” for purposes of the DNC rules.  Alpha Cash’s motion to dismiss the DNC claims was denied accordingly.  Id. at *3.

Separately, the court found that Hunsinger failed to state a claim under the TCPA’s autodialer provision (47 U.S.C. § 227(b)(1)(A)) because the complaint established that Hunsinger was contacted from a pre-produced list of numbers compiled by Alpha Cash, and not from a list of random or sequentially generated phone numbers.  Hunsinger alleged that Alpha Cash located and contacted him and other individuals from whom it wanted to purchase real estate by using tracking technology and a texting platform that allegedly allowed Alpha Cash to send up to 500 text messages at a time.  These allegations, the court found, didn’t support a reasonable inference that Alpha Cash used a dialing system with the capacity to randomly or sequentially store or produce phone numbers.  The court cited the Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1168 (2021), for the principle that a system which dials numbers from a pre-produced list does not run afoul of section 227(b)(1)(A).  Id. at *4.

The court also explained that the personalized nature of the texts to Hunsinger and the context in which they were sent didn’t imply use of an ATDS.  Whereas impersonal and generic language tends to indicate ATDS use, the texts to Hunsinger were “direct and personal,” referring to Hunsinger by name and referencing earlier communications between the parties.  Additionally, the fact that the texts originated from a ten-digit telephone number, as opposed to a short-code number, suggested that no ATDS was used.  Id. at *5.

Hunsinger’s claims for violation of section 227(b)(1)(A) were dismissed accordingly, but the court granted leave to re-plead, in part because Hunsinger was proceeding without an attorney and had preemptively requested leave to amend his faulty pleading.  Id. at *6.