BUSINESS NUMBER RULES: New Case Breaks Down the TCPA DNC Rules Regarding Calls to Business Numbers Quite Well

2 Comments

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:

  1. If a business number is inadvertently registered on the DNC, there is still no cause of action for calling that number (good news);
  2. 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);
  3. 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.

Happy Monday!

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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.

2 Comments

  1. If a call or text b2b to a cellphone manually written text even If I use a software to locate business information available on google, I should be safe?

    It looks in this case I am safe but there’s a lot of details and most of the times it looks like is not but the documents from FCC stated.” In the 2012 TCPA Order (2012 TCPA Order), the Federal Communications Commission (“the
    Commission”) took steps to protect consumers from unwanted telemarketing calls pursuant to
    the Telephone Consumer Protection Act of 1991 (TCPA).1
    The protections the Commission
    adopted will protect consumers from unwanted autodialed or prerecorded telemarketing calls,
    also known as “telemarketing robocalls.”

    The key here is autodialed or prerecorded calls.
    At this point I don’t see any information explaining in detail these points. I am worried about this, and I am sure a lot of people are in the same way.
    Texting or calling a mobile number manually will be good if I don’t have any system that helps me doing a lot at the same time?
    Thanks in advance

    Reply

    1. cant give legal advice over a blog buddy, but generally even manual marketing calls will trigger the DNC rules when made to a residential number (including a cell phone)–and many “business” cell phones are actually used for personal purposes too so– be careful!

      Reply

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