I still see confusion from time to time on whether a call to a business number can violate the TCPA.
The short answer is: “yes and no.”
As hopefully everyone knows, the regulated technology portions of the TCPA (227(b)) apply to business cell phones. So even if a cell phone is used for business purposes, a caller still must have consent to leverage either an ATDS or a pre-recorded/artificial voice message to call such numbers.
On the other hand, calls to business numbers cannot trigger the TCPA’s DNC provisions–those only apply to residential numbers (which include cell phones, but not business lines.)
In KYLE MIHOLICH v. SENIOR LIFE INSURANCE COMPANY, Slip Copy2022 WL 1505865 (S.D. Cal. May 12, 2022) the Court broke these rules down pretty well and gave a couple of additional nuanced (correct) rulings here.
The Miholich case involved a reconsideration request by a Defendant that had already lost a motion to dismiss. The Defendant argued that the complaint failed to state facts demonstrating it had made the calls at issue. But since the Complaint literally alleged that the Defendant had made the calls at issue… well, it lost.
It also lost on the issue of whether or not the Plaintiff’s phone was a business phone. On the one hand the Defendant showed that the Plaintiff had registered the number as a business number with a state insurance website. On the other hand the Plaintiff swore he also used it as a personal number. And that fact–that Plaintiff also used the number for personal purposes–was sufficient to create a jury question that had to go to trial.
So some additional rules to keep in mind here:
- If a business number is inadvertently registered on the DNC, there is still no cause of action for calling that number (good news);
- If a caller calls a residential number on the DNC thinking its a business number and for the purpose of a B2B call it STILL violates the TCPA (bad news);
- Even if a called party uses a number for a business purpose her/she can still sue for DNC violations if they also use the phone for residential purposes (And many people do that post-COVID.)
So you bring all this together and the TCPA DNC rules are REALLY tough for B2B folks to comply with in the absence of consent. Even if you think you are calling a business number and there is evidence it is a business number and you are calling for a business purpose –you are still not safe. As Miholic demonstrates.