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The TCPA's Do-Not-Call Rules, Cell Phones, and Texts
gmlaw.com
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The defendant moved to dismiss, arguing Section 227(c)’s DNC rules protect only “residential telephone subscribers,” not cellular users. “The court ultimately followed other Northern District of Georgia decisions post-McLaughlin (Isaacs and Radvansky) in concluding that “residential subscriber” turns on the nature of the user (personal/residential vs. business), not the technology (landline vs. cellular).” The court further noted that other courts, exercising independent judgment after McLaughlin, have found that DNC protections extend to cell phones and text messages used for personal purposes. Applying that framework, the court concluded that the plaintiff plausibly alleged “residential subscriber” status by alleging personal, non-business use of his cell phone.
The defendant moved to dismiss, arguing Section 227(c)’s DNC rules protect only “residential telephone subscribers,” not cellular users. “The court ultimately followed other Northern District of Georgia decisions post-McLaughlin (Isaacs and Radvansky) in concluding that “residential subscriber” turns on the nature of the user (personal/residential vs. business), not the technology (landline vs. cellular).” The court further noted that other courts, exercising independent judgment after McLaughlin, have found that DNC protections extend to cell phones and text messages used for personal purposes. Applying that framework, the court concluded that the plaintiff plausibly alleged “residential subscriber” status by alleging personal, non-business use of his cell phone.
By: Jeffrey Backman, Esq. and Roy Taub, Esq. “Recent decisions underscore that the issue remains unsettled in important ways, even as more courts conduct their own statutory analyses following a Supreme Court decision that loosened prior constraints on reviewing FCC interpretations.” In Loudermilk, the plaintiff alleged he received repeated telemarketing texts to a personal cell number registered on the National DNC Registry for over twenty years, despite requesting that the sender stop and being told he was “successfully unsubscribed.” He sued under 47 U.S.C. § 227(c) and related FCC regulations, asserting failures in internal DNC procedures and DNC Registry compliance.
For years, companies and consumers have wrestled with whether the TCPA’s National Do-Not-Call (DNC) protections for “residential telephone subscribers” apply to cell phones and text messages. Recent decisions underscore that the issue remains unsettled in important ways, even as more courts conduct their own statutory analyses following a Supreme Court decision that loosened prior constraints on reviewing FCC interpretations. A new Northern District of Georgia decision in Loudermilk v. Maelys Cosmetics offers a clear window into the debate—and its practical stakes. “In Loudermilk, the plaintiff alleged he received repeated telemarketing texts to a personal cell number registered on the National DNC Registry for over twenty years, despite requesting that the sender stop and being told he was “successfully unsubscribed.” He sued under 47 U.S.C. § 227(c) and related FCC regulations, asserting failures in internal DNC procedures and DNC Registry compliance.” The defendant moved to dismiss, arguing Section 227(c)’s DNC rules protect only “residential telephone subscribers,” not cellular users.