Step in the Right Direction: New Case Holds TCPA Doesn’t Apply to Business Cell Phones– But Don’t Get Excited Just Yet

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Its one of the most dangerous traps in TCPAWorld. Companies engaged in B2B sales using technology regulated by the TCPA to make marketing calls to business numbers they find in various directories. While a stout DNC defense exists for calls to non-residential numbers, there is no corresponding defense for calls to business cell phones made using an ATDS or a pre-recorded voice.

Or is there?

In a new decision out last week a U.S. District Court in Idaho has held that the TCPA does not apply in favor of business cell phone subscribers at all. The decision is Chennette v. Porch.com, Case No. 20-cv-201, Doc. No. 24 (D. Id. Sept. 2, 2020) and is available here: Chennette

The Chennette court, relying primarily on an FCC ruling interpreting the scope of the scope of the DNC rules and my big ruling in Stoops (that prevents the application of the TCPA to people who use the statute as a business, not to phones used for business purposes) determines that a business phone subscriber lacks prudential standing to sue under the TCPA. And while ordinarily I’d jump up and down in excitement over such a novel ruling, it is tough to get excited about it when… well… how do I put this.

Hmm. Let’s do it this way.

As already noted the FCC’s analysis addressing the scope of the TCPA’s DNC rules seems inapposite on the issue, not just because the FCC was looking at a different component of the law but because the DNC rules specifically reference “residential” phone lines; the ATDS’ cellular phone restrictions do not. And Stoops has even less to do with the issue since that case looked at the exploitation of the statute by parties who knowingly invent lawsuits; but merely using a phone for business purposes, without more, is not the same thing as knowingly inviting or manufacturing TCPA violations.

So while I am encouraged and excited for the defendant in Chennette, I have to urge caution to TCPAWorld here. Please do NOT let anyone convince you that business cellular numbers are now somehow categorically exempt from the TCPA. Indeed, there are some repeat player TCPA plaintiffs out there who intentionally list their cell phone numbers as business numbers precisely with the intention of netting unconsented dialer calls– don’t fall for it. 

To review: The DNC rules generally do NOT apply to calls to businesses (but watch out where a business number is used for residential purposes.) But the TCPA’s dialer and pre-recorded voice restrictions are generally held to apply to ANY cell phone (business or residential). While Chennette may represent a first step away from this dichotomy, callers should be cautious not to leap to any dangerous conclusions that might cost them their business or personal fortune.

Gentle enough?

Always happy to discuss.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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  1. Pingback: TCPAWorld Giveth and Taketh Away: Porch is Told the TCPA Does Apply to its Calls After Another Court Said the Opposite Just Earlier this Month – TCPAWorld

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