In an Order issued December 16, 2020, the Eastern District of Texas adopted the Report and Recommendation of United States Magistrate Judge Kimberly C. Priest Johnson finding that calls placed to a cellular telephone do not qualify as calls to a residential telephone subscriber for purposes of § 227(c) of the Telephone Consumer Protection Act (“TCPA”).  See Cunningham v. Britereal Mgmt., No. 4:20-cv-144-SDJ-KPJ, (E.D. Tex. Nov. 20, 2020).

The plaintiff in this case, alleged that he received at least 25 calls and multiple text messages on his cell phone seeking to sell a supplement named “Bio Virexagen.”  Because he had not consented to receiving the calls and his telephone number is allegedly on the national do-not-call list, Cunningham asserted claims for violation of the TCPA under 47 U.S.C. § 227(c)(5).

In enacting § 227(c), Congress directed the FCC to promulgate regulations aimed at the establishment and operation of a national database of telephone numbers of residential subscribers who object to receiving telephone solicitations.  Congress also permitted the FCC to regulate telephone solicitations to any number in the database.  The statute also allows certain individuals who have “received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under [§227(c)] [to] assert a private cause of action.”  47 U.S.C. § 227(c)(5).

The regulations promulgated under § 227(c) prohibit certain sales calls made to residential telephone numbers listed on the National Do Not Call Registry and require persons making telemarketing calls to implement procedures to keep this from occurring.  Specifically, the regulation relied upon by the plaintiff in asserting his claims provides:

No person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.

47 CFR § 64.1200(d).

However, in recommending dismissal of the plaintiff’s claims, the Magistrate Judge held that § 227(c) is “limited to redress for violations of the regulations that concern residential telephone subscribers” and does not extend to “telemarketing calls made to cell phones.”  Because Cunningham only alleged communications made to his cell phone, she found that his complaint failed to state a claim under § 227(c).

We will continue to monitor and report on this evolving area of the law as additional courts weigh in on the issue of if or when a cell phone used can qualify as a residential subscriber under the TCPA.