Personal cell phones may qualify as “home phones” subject to DNC rules, but calls made to a pre-produced list are not ATDS calls, Texas Northern District Holds | Drinker Faegre Biddle & Reath LLP

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Last week, the U.S. District Court for the Northern District of Texas ruled that cell phones qualify as “home telephones” when used (as the complaint alleged) primarily for “personal, family, and household purposes.” and therefore subject to the TCPA Non-Appeal Rules (47 CFR §§ 64.1200(c) & (d)). This issue has been divisive among federal district courts and may attract the attention of higher courts. But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), which agreed that calls specifically directed to people on a pre-generated list (such as the caller) are not calls made using a “random or sequential number generator” and are therefore 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 (ND Tex. Feb. 24, 2022), plaintiff alleged that in the past year he received eight unsolicited phone calls and six text messages on his mobile phone from a number he does not recognize. Hunsinger took one of the calls and spoke with a representative for the accused, to whom Hunsinger gave his email address. Hunsinger then received several calls and text messages from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction. Those calls and text messages were sent using an ATDS, Hunsinger said. At all relevant times, Hunsinger’s number was on the DNC national list. Identifier. to 1.

Alpha Cash argued that Hunsinger did not plausibly argue a violation of DNC rules because those regulations only applied to “home” phones, which does not include cell phones. Hunsinger responded that, as with landline phones, the DNC rules apply to any cellphone used for “residential” purposes, such as personal and household use. Identifier. at 2 o’clock.

The court agreed with Hunsinger that the DNC rules apply to personal cell phones. The court pointed out that 47 CFR § 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 that the FCC held that “it is more consistent with the general intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections” and that wireless subscribers can participate in the national list of DNCs. Identifier. (quoting In re Rules & Regs. Implementation of Tel. Consumer Prot. 1991 Act, 18 FCC RCd. 14014, 14039 (2003)).

Several district courts have interpreted “home phones” to include personal cell phones, the court also noted. See id. (collection of cases). However, the court acknowledged that at least one district court has come to the opposite conclusion that cell phones, even personal ones, fall outside the scope of the DNC rules. See id. (citing Callier c. GreenSky, Inc., EP-20-CV-00304, 2021 WL 2688622, at *6 (WD Tex. May 10, 2021)). The court said it would reconsider its position if further developments in the law warranted it. Identifier. to *2 n.2.

Since Hunsinger alleged that his cell phone was used primarily for “personal, family and household” purposes, the court concluded that he could reasonably infer that the phone was a “home phone” for the purposes of the DNC rules. . Alpha Cash’s motion to dismiss the DNC claims was accordingly denied. Identifier. at 3.

Further, the court found that Hunsinger did not bring a claim under the TCPA’s autodialer provision (47 USC § 227(b)(1)(A)) because the complaint established that Hunsinger had been contacted from a pre-arranged list of numbers compiled by Alpha Cash, not from a randomly or sequentially generated list of phone numbers. Hunsinger alleged that Alpha Cash located and contacted him and others he wanted to buy real estate from using tracking technology and a texting platform that allegedly allowed Alpha Cash to send up to 500 SMS at a time. These allegations, the court found, did not reasonably support the conclusion that Alpha Cash used a numbering system capable of storing or randomly or sequentially producing telephone 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 that dials numbers from a pre-produced list does not violate section 227(b)(1)(A). Identifier. at 4 o’clock.

The court also explained that the personalized nature of the texts to Hunsinger and the context in which they were sent did not imply the use of an ATDS. While impersonal and generic language tends to indicate the use of ATDS, the texts addressed to Hunsinger were “direct and personal”, referring to Hunsinger by name and referencing prior communications between the parties. Additionally, the fact that the texts came from a ten-digit telephone number, as opposed to a speed dial, suggested that no ATDS was being used. Identifier. at 5.

Hunsinger’s claims for violation of s. 227(b)(1)(A) were dismissed accordingly, but the court granted leave to plead again, in part because Hunsinger was proceeding without counsel and had requested as a preventive measure, authorization to modify his defective plea. Identifier. at 6.

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