Cellphones Not Covered by DNC Protections, NC Court Rules

TCPA Connect

Cellphones are not subject to the protections of the federal DNC Registry, a North Carolina magistrate judge has ruled, recommending that a Telephone Consumer Protection Act (TCPA) defendant’s motion to dismiss the suit be granted.

Heather Gaker registered her personal cellphone on the National DNC Registry on November 15, 2019. After her name and phone number were purportedly entered into a sweepstakes in January 2020—Gaker asserted she does not recall entering the sweepstakes—she began receiving unsolicited telemarketing calls.

In the early months of 2020, Gaker received six calls during which a live agent attempted to sell her “final expense insurance.” During several of those calls, she stayed on the line and engaged with the caller to ascertain who originated the calls. During one of the calls, Q3 Insurance Solutions transferred her to TZ Insurance Solutions. Gaker then filed suit against Q3 and TZ under the TCPA.

The defendants moved to dismiss, arguing that the National DNC Registry only applied to residential telephone lines and not cellphones, and Magistrate Judge David S. Cayer agreed.

Section 227(c) of the TCPA and the corresponding regulations prohibit businesses from placing “telephone solicitation” calls to a “residential telephone subscriber” who has placed her number on the National DNC Registry. While the FCC interpreted “residential subscribers” to include those who register their cellphone numbers on the National DNC Registry in a 2003 ruling, the Court noted that the U.S. Court of Appeals, Fourth Circuit had yet to weigh in on whether cellphone owners are considered “residential telephone subscribers,” and other courts that have addressed the issue were split as to whether the TCPA extends to wireless telephone numbers.

“The FCC’s interpretation at issue does not preclude this Court from applying the clear text of the TCPA,” Magistrate Judge Cayer wrote. “The structure and language of the TCPA controvert coverage of cellphones.”

The FCC’s rulemaking authority under section 227(c) extends only to unwanted telephone solicitations directed at “residential telephone subscribers,” the court said, relying on the dictionary definition of “residential” as “used as a residence or by residents” and the definition of “resident” as “living in a place for some length of time” or “one who resides in a place.”

Further, Congress referenced “cellular telephone” in other provisions of the statute, evidencing that both Congress and the FCC were aware of the distinction between a cellular telephone and a residential telephone, and made a purposeful decision to protect only “residential telephone subscribers,” the court noted.

“Cellphones do not present the same concerns as residential telephones,” the court wrote. “Cellphones’ mobility and functionality to silence or decline calls alleviate the concerns inherent with a home telephone. Plaintiff alleges no facts showing where she was when she received the calls or whether her phone was on silent. She did not answer four of the six calls she allegedly received, thus diminishing any claim that such calls invaded her privacy.

“In sum, the authority rests with Congress to amend the TCPA and bring cellphones within its protections.”

Judge Cayer recommended that the defendants’ motion to dismiss be granted. Plaintiff filed objections to the recommendation, to which the defendant replied. However, shortly thereafter the parties filed a joint motion to stay the case for 30 days due to an imminent settlement.

To read the memorandum and recommendation in Gaker v. Q3M Insurance Solutions, click here.

Why it matters: As the court noted, a split of authority exists on the issue of whether the TCPA’s DNC Registry protections extend to wireless telephone numbers, with decisions against coming out of Texas and opinions in favor coming from Maryland, with other courts taking a wait-and-see approach by permitting discovery as to the circumstances of cellphone use to determine if it qualifies under the statute.



pursuant to New York DR 2-101(f)

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