Our readers may recall a piece in which we discussed a recent decision from the United States Supreme Court which more than opened the door to judicial review of the Telephone Consumer Protection Act’s (“TCPA”) implementing regulations promulgated by the Federal Communications Commission (“FCC”). In the wake of that decision, a federal court in Georgia recently evaluated whether cell phones fall within the ambit of the term “residential subscriber” under the TCPA. Below, we briefly discuss the decision and go into detail about its implications.
Court Rules That Cell Phone Users Are Residential Subscribers Under The TCPA
As our readers know, the TCPA prohibits telemarketing calls/texts to residential telephone subscribers who have registered their telephone numbers on the national do-not-call registry. Pursuant to its statutory authority under the TCPA, in 2003, the FCC issued a report and order holding that cell phone users are “residential subscribers” under the TCPA. As a result, courts routinely rejected arguments that cell phones were beyond the scope of the TCPA. After the Supreme Court’s decision in McLaughlin Chiropractic Associates v. McKesson Corporation (“McLaughlin”), courts have been tasked with analyzing various challenges to the FCC’s TCPA interpretations and regulations. In Isaacs v. USHEALTH Advisors, LLC, the United States District Court for the Northern District of Georgia was presented with the issue of whether the TCPA term “residential subscriber” should cover cell phone users.
In Isaacs, Plaintiff alleged that he received unsolicited text messages to his cell phone from Defendant. In an effort to end the tide of text messages that he continued to receive from Defendant, Plaintiff, whose cell phone number was registered on the national do-not-call registry (“NDNC”), claimed that he wrote a letter to Defendant: (1) informing it that he is on the NDNC; and (2) requesting that it stop sending him texts. Because Plaintiff continued receiving texts from Defendant, Plaintiff filed suit alleging that the text messages violated the TCPA because: (1) they were unsolicited; (2) his cell phone number was registered on the NDNC; and (3) they were sent after he asked to be placed on Defendant’s internal do-not-call list. Defendant moved to dismiss these TCPA claims arguing, among other things, that cell phones are excluded from the term “residential subscriber” within the text of the TCPA.
As the Court noted, prior to the Supreme Court’s decision in McLaughlin, the question of whether cell phones were excluded from the term “residential subscriber” under the TCPA was well-established. However, post-McLaughlin, the Court stated that it “must independently – and without deference to the FCC’s decision – evaluate Defendant’s argument that the term ‘residential subscriber” excludes cell phone users.” In ruling on Defendant’s Motion to Dismiss, the Court determined that the term “residential subscriber” under the TCPA applies to a certain type of phone subscriber, rather than to a particular type of phone technology. In reaching this determination, the Court reasoned that “‘residential’ modifies ‘subscriber,’ meaning that the definition is tethered to a type of person rather than a type of technology.” The Court also noted that including cell phone users within the meaning of “residential subscriber” comports with the TCPA’s purpose of protecting residential privacy. Thus, the Court held that cell phone users are residential subscribers for TCPA purposes, and as such, denied Defendant’s Motion to Dismiss.
Future Challenges to the FCC’s TCPA Implementing Regulations
Since the TCPA was enacted over thirty years ago, the FCC, pursuant to its authority under the TCPA, has implemented a plethora of regulations. In a post-McLaughlin world, these regulations and statutory interpretations are now susceptible to challenge in district courts across the country. Although this is highly likely to result in both inconsistent rulings and uncertainty for the telemarketing industry, companies sued for alleged TCPA violations now have additional ammunition with which to fight back.
Before McLaughlin, TCPA and telemarketing law compliance was already fraught with landmines. Now, more than ever, complying with the TCPA and other federal and state telemarketing laws requires the guidance of attorneys who stay at the forefront of the latest telemarketing law developments.
[View source.]
