WRONG ARGUMENT: Dickey’s Barbecue Loses Motion to Dismiss in DNC SMS TCPA Case– But Not the One You’d Expect

TCPAWorld has been broadly covering the hottest trend in TCPA litigation– courts determining that SMS messages are not calls for TCPA DNC purposes.

Well Dickey’s Barbecue was just sued in an TCPA DNC class action arising out of SMS messages. But apparently their lawyers are not reading TCPAWorld because instead of moving to dismiss the suit on the grounds texts aren’t subject to the TCPA they moved on the ground that cellular phones aren’t residential.

Huh?

In McGonigle v. Dickey’s Barbecue, 2026 WL 2114507 (E.D. VA July 22, 2026) defendant is alleged to have sent unwanted marketing text messages to a consumer who had his number on the DNC list. The consumer sued in a TCPA class action brought by the wolf.

Again. courts all over the nation are throwing out these cases as the TCPA’s DNC rules provide a private right of action only for “telephone calls” and not “Telephone solicitations.” Although telephone solicitations do include text messages, telephone calls– as the words used suggest–likely do not.

But Dickey’s did not move to dismiss on that ground for some unknown reason.

Instead Dickey’s argued cell phones are not “residential” lines– and only calls to residential lines are subject to the TCPA’s DNC rules.

But if Dickey’s lawyers knew anything about the TCPA they’d know the vast majority of courts have held cell phones can be residential lines when used for personal purposes.

And if they’d done any research at all they would have known the Honorable Rossie D. Alston Jr.– the Judge they were in front of–had already so ruled. 

Indeed the court begins its analysis on the issue with this beautiful one liner: “Although the Fourth Circuit has not yet addressed this question, this District Judge has already indicated a view on the resolution of this issue. See Clemens v. Consumer Sol. Ctr., 2025 WL 2604494, at *13 n.6 (E.D. Va. July 14, 2025) (noting that “a cell phone may plausibly be alleged as residential for purposes of the TCPA”)”

Little surprise the court followed its earlier analysis and concluded a cellular phone could be a residential line.

Making matters worse Dickeys lawyers apparently tried to trick the court by arguing allegations were lacking that were perfectly alleged:

“Defendant next argues that, even if a cell phone can be residential, Plaintiff did not properly allege that his personal cell phone was used residentially. Dkt. 14 at 1. A review of the Complaint, however, demonstrates that Plaintiff has sufficiently alleged that his cell phone was used residentially…it is unclear what more Plaintiff could allege to establish that his phone is used for residential purposes.”

Eesh.

So Dickey’s brought the wrong argument to the absolutely wrong judge and then tried to trick the judge with arguments that did not align with the alleged facts.

Just terrible stuff.

Wonder if they used GenAI?

Regardless hire the right counsel and make the right arguments folks. The lawyers at Troutman Amin, LLP would never screw things up this way because:

1. We follow the TCPA like hawks and read every decision every day;
2. We know exactly what rulings every judge we are in front of has made and tailor our arguments accordingly;
3. We never use gGnAI so we don’t misrepresent the law or facts to the court– ever.

Important stuff– and the Baroness (Brittany Andres) will be discussing all of this at ASE next week!!

Hang in there TCPAWorld.

Chat soon.