Motion for dismissal DENIED! Mobile phones can be home numbers for DNC claims – TCPAWorld
Faced with a TCPA class action lawsuit, it is tempting to attempt anything and everything to derail the plea case. And, of course, sometimes there are ways to do it. But a North Carolina court recently rejected two arguments that often don’t work, especially at the plea stage: (1) cell phones are not “residential” for TCPA purposes; and (2) 47 CFR 64.1200 (d) does not provide for a private right of action. Boardman v. Green DOT Corp. Order, NO. 3: 21-CV-00174-FDW-DSC, 2021 US Dist. LEXIS 156403 (WDNC Aug 19, 2021).
The cell phones are not residential argument is tricky because, well, people use cell phones as their “home phone”. To be fair, the Court recognized that the question of “whether or not cell phones are” residential “for purposes of the TCPA has not yet been addressed by the Fourth Circuit. The court also acknowledged that there was no “clear consensus” on the issue. But, achieving the most typical result, the Court ruled:
A cell phone can likely be considered residential for TCPA purposes.
The court also dismissed the dismissal of the application to apply 47 CFR 64.1200 (d), which requires companies to maintain “a list of persons who must not receive telemark calls”. This result is also consistent with the weight of authority.
The Court left open the possibility of reconsidering these arguments after examination for discovery on a motion for summary judgment.