Butera v Sugarhouse Real Estate Group, L.C., No. 2:25cv00014 DAK-DAO, 2025 WL 1798968 (D. Utah June 30, 2025)
Background
Plaintiff, who registered his number on the National Do Not Call registry (“DNC”) in 2015, listed a piece of property for sale through a brokerage not affiliated with Defendant in 2020. The listing expired and Plaintiff decided not to relist the Property, after which time he began receiving numerous unsolicited calls and text messages from real estate agents and brokers. In 2024, Plaintiff received a call from Defendant. He did not answer the call but about an hour later, called the number back. Nobody answered that call but a voicemail mail message played identifying Defendant. Plaintiff did not leave a message. The next morning, Plaintiff received a second call from Defendant. When he answered the call, the agent solicited him to relist the expired property listing. Plaintiff advised the agent that his number was registered on the DNC, asked not to be called again and the call ended.
Plaintiff’s Claims
The TCPA prohibits making more than one telephone solicitation to an individual’s residential telephone number registered on the DNC barring certain exceptions not applicable here. See 47 U.S.C. § 227(c), 47 C.F.R. § 64.1200(c). Plaintiff filed a class action lawsuit, contending that both the first and second calls were telephone solicitations and, as a result, Defendant violated the TCPA. Defendant disagreed, claiming that the second call was simply a return call in direct response to, and induced by Plaintiff’s call, and filed a motion to dismiss.
The Holding
After summarizing the Parties’ arguments, the Court noted that “even assuming that the first call was a telephone solicitation, the crux of this lawsuit is whether [Defendant’s] return call-after [Plaintiff] called that phone number—was a telephone solicitation as defined by the TCPA.” The Court then concluded that:
the return call from [Defendant] was made in response to [Plaintiff’s] own call and was not an “unsolicited” attempt to encourage the purchase or rental of goods or services. It is common in this day and age for a person to return a “missed call” that is displayed on their phone, and thus, the court concludes that [Plaintiff’s] call to [Defendant]—without leaving a voicemail message—was an invitation for a return call. Thus, it cannot be considered a second “solicitation” under 47 U.S.C. § 227(c)(5) [. . .] [i]n the present situation, [Plaintiff’s] argument, taken to its logical extreme, would permit individuals who are registered on the DNC list to make return calls to businesses like [Defendant] that had perhaps made one unsolicited phone call, thereby eliciting a return call, and then alleging a violation of the TCPA. This manufactured liability is not the purpose of the TCPA. Undoubtedly, there are few—if any—individuals who are not annoyed by unsolicited sales calls, but the TCPA requires two unsolicited phone calls before a violation of the statute occurs. Here, the court cannot conclude that the second call was unsolicited, and therefore, [Plaintiff’s] claim must be dismissed.
A copy of the opinion can be accessed by clicking here.
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