Do Not Call Violation Suit Moves Forward Despite Business Use

TCPA Connect

An Ohio federal court allowed a plaintiff to pursue a lawsuit based on alleged violations of the National Do Not Call (DNC) Registry—despite the fact that he operated a business from his home and used the number for both personal and work purposes.

Jeffrey Blevins filed a putative class action against Premium Merchant Funding One in April 2018 after receiving two text messages from the defendant. The first message featured an image of a man appearing to work on a laptop computer at a pool with the text: “You know you’re a small business owner when … this is your idea of work life balance.”

The second text read: “You need working capital! I have the best rates! Consolidation and Lines of Credit, Loans and Trade Financing – Easy Process! Let’s talk!” Blevins responded: “Who is this and what’s your company’s name?” He received a text stating, “My name is Bryce and I work with Premium!” Blevins replied: “Got a website? I’ll check it out.”

Blevins’ number was registered pursuant to the DNC Registry. He sued, claiming that the text messages constituted a violation of the Telephone Consumer Protection Act (TCPA).

But the defendant pointed out that Blevins was a small-business owner and used the telephone number for both residential and business purposes. Premium Merchant moved for judgment on the pleadings, arguing that Blevins’ business use of the telephone number voided any protection under the TCPA.

The plaintiff countered that it was too early to dismiss the case and that, based on guidance from the Federal Communications Commission (FCC), discovery was required on the issue of business use of the telephone number.

Agreeing with Blevins that the FCC has recommended a case-by-case analysis of business use of a phone number on the DNC Registry, U.S. District Judge George C. Smith of the Southern District of Ohio denied the motion for judgment on the pleadings.

In a 2005 order, the FCC stated that it “decline[d] to exempt from the do-not-call rules those calls made to ‘home-based businesses’ rather, we will review such calls as they are brought to our attention to determine whether or not the call was made to a residential subscriber.”

“As such, courts have routinely looked at the facts and circumstances surrounding a particular case before deciding whether TCPA protection extended to a particular telephone number that was used for both business and residential purposes,” the court wrote, citing decisions from federal courts in Colorado, Illinois, Iowa and New York.

“[P]ursuant to FCC guidance and case law applying such guidance, the Court finds that dismissing this case pursuant to Rule 12(c) would not be proper,” Judge Smith concluded. “In viewing the Amended Complaint in the light most favorable to the Plaintiff, the Court finds there to be plausible TCPA violations to survive a motion for judgment on the pleadings.”

To read the opinion and order in Blevins v. Premium Merchant Funding One, LLC, click here.

Why it matters: Relying on a 2005 FCC order, the Ohio federal court refused to dismiss the action without discovery on the issue of the plaintiff’s combined residential and business use of the phone number listed on the DNC Registry. In so doing, Judge Smith cited a variety of authorities holding that a plaintiff’s admitted business use of a number does not preclude recovery under the TCPA.



pursuant to New York DR 2-101(f)

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