Plaintiff’s Cellphone Qualifies as Residential Telephone

TCPA Connect

U.S. District Court Judge J. Paul Oetken in the Southern District of New York held that a Telephone Consumer Protection Act (TCPA) plaintiff sufficiently alleged facts in order to survive a motion to dismiss on his prerecorded call and Do Not Call (DNC) Registry claims.

Patrick Rose registered his cellphone number, which he claimed to use only for personal purposes, on the National Do Not Call Registry in 2004.

In 2018, he visited a Boston Sports Club owned and operated by New TSI Holdings, Inc. (TSI). After his visit, Rose began receiving solicitation calls on behalf of the gym.

Rose allegedly asked TSI on at least five occasions to stop contacting him, including in an email to TSI in which he identified his number and wrote, “STOP CALLING AND TEXTING ME.” He claims to have continued to receive solicitation calls, including a number of identical prerecorded messages in 2021 offering Boston Sports Club membership promotions.

Between 2018 and 2021, Rose allegedly received approximately 12 calls from TSI. He filed suit, alleging the defendant violated the TCPA in three ways: by making telemarketing calls to a number on the DNC Registry, by making telemarketing calls with prerecorded messages without prior written consent, and by making the calls even after he told TSI to stop calling him.

TSI moved to dismiss the lawsuit, but Judge Oetken found that Rose alleged sufficient facts to sustain a claim that he received prerecorded messages, noting that the plaintiff asserted at least two of the prerecorded messages were identical and provided a transcript of the messages.

Rose also alleged that his phone never rang when he received the messages, “potential evidence that he received a kind of prerecorded message known as ‘ringless voicemails,’” Judge Oetken wrote. “These allegations sufficiently support Rose’s claim that he received prerecorded messages at this stage.”

TSI also argued that Rose had no private right of action under the TCPA because he alleged only that he received prerecorded messages on his cellphone, failing to establish that he was a residential telephone subscriber.

“As TSI concedes, however, cellular telephone numbers can qualify as residential numbers under the TCPA,” the court said. “The FCC, which possesses authority to issue implementing rules and regulations for the TCPA, defines a ‘residential subscriber’ as a ‘subscriber to a telephone exchange service that is not a business subscriber’—a definition that can include cellphone users. Indeed, the FCC has explicitly determined that the DNC Registry applies to cellphone numbers.”

Consistent with this authority, Judge Oetken noted that courts have recognized the protections afforded to wireless numbers by the TCPA and the DNC Registry, citing decisions from courts in Massachusetts, Missouri and New Mexico.

However, in stark contrast to a large body of precedent deciding otherwise, the court found that bare-bones allegations that the phone was “personal” and not used for “business purposes” was sufficient at the motion to dismiss stage. “Though Rose does not specifically allege that his cellphone number was a residential one, he alleges that it was a personal number that he did not use for business purposes and that it has been listed on the DNC Registry since 2004,” the court wrote. “At the motion to dismiss stage, these allegations are sufficient for Rose’s TCPA claims to move forward.”

Judge Oetken also allowed Rose’s claims for treble damages to advance, as Rose alleged that he told TSI to stop contacting him at least five times, including in an email, and still continued to receive prerecorded messages.

To read the opinion and order in Rose v. New TSI Holdings, Inc. click here.

Why it matters: The Rose decision is in stark contrast to a body of case law that requires sufficient allegations actually showing the “residential” use of a phone number to advance a DNC Registry claim at the motion to dismiss stage. This authority holds that merely claiming “residential” use of a number, without factual support, is insufficient. Therefore, the Rose case acts as a critical reminder that, at times and contrary to existing authority, courts can find basic allegations to be sufficient at the pleadings stage.



pursuant to New York DR 2-101(f)

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