Whether the Telephone Consumer Protection Act’s (“TCPA”) National-Do-Not-Call-Registry (“NDNCR”) rules apply to cellphones has been a hotly debated issue. The issue stems from a 2003 Federal Communications Commission (“FCC”) order instructing that cellphones are presumed to fall under the DNC rules. Following that order, and a prior doctrine requiring courts to defer to federal-agency orders (so-called Chevron deference), numerous courts have held that making certain telemarketing calls to cellphone numbers registered on the NDNCR can constitute a violation of the TCPA and the FCC’s implementing regulations.
In a major decision with broad ramifications, the Supreme Court overturned the doctrine of Chevron deference earlier this year.[1] Since then, it has been a waiting game to see where courts land on the cellphone/NDNCR issue now that they don’t have to defer to that 2003 FCC order. Post-Loper, at least three different federal district courts have weighed in on the issue.[2] All three courts, through their own analysis, upheld the presumption that cellphones are subject to the TCPA’s NDNCR provisions. Below we briefly explain the argument for why cellphones should not be subject to such provisions, the current trend post-Loper, and why the federal courts in the Eleventh Circuit (which covers Alabama, Florida, and Georgia) may play an important role in deciding this issue.
The Plain Language of the TCPA’s NDNCR Provisions
The debate surrounding whether cellphones are subject to the TCPA’s NDNCR provisions arises from the plain language of the TCPA and the FCC’s implementing regulations.
In subsection 227(c) of the TCPA, Congress tasked the FCC with promulgating rules to “protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.”[3] Congress also provided a private right of action to persons who receive more than one telephone call within any 12-month period by or on behalf of the same entity, in violation of those FCC rules.[4] One such FCC rule provides that: “No person or entity shall initiate any telephone solicitation to . . . A residential telephone subscriber who has registered his or her telephone number on the” NDNCR.[5]
The argument for a cellphone not being subject to that FCC rule arises from the commonsense notion that a residential telephone number (a home landline) is different than a cellular telephone number. That idea is further supported by other language in the TCPA where Congress clearly distinguished between residential telephone lines and cellular telephone lines.[6] Thus, TCPA defendants have often argued that the FCC improperly exceeded its authority in its 2003 order because Congress only intended for the TCPA’s NDNCR protections to apply to residential telephone numbers, not cellular telephone numbers. For as long as courts have been interpreting statutes, they have acknowledged that when a legislature uses different language in the same law, those differences are presumed to be both intentional and meaningful. But with the generous indulgences that Chevron deference produced in the courts, courts would routinely turn a blind eye to the FCC’s “expertise” in divining Congress’s intention when it used everyday terms like “cellular telephone service” and “residential telephone subscriber.” The expectation or hope in some quarters was that Loper would bring a fresh look to these instances of federal agencies “filling in gaps” that didn’t exist to help meet the “spirit” of what Congress, at least in their view, wanted.
Post-Loper, Courts Hold Cellphones to Be Protected by TCPA’S NDNCR Provisions.
Despite the plain language of the TCPA and courts no longer required to defer to the FCC’s 2003 order, three of the district courts to address this issue post-Loper have all ruled that cellphones are presumed to fall under the protections of the TCPA’s NDNCR provisions. See supra n.2.
In each case, the district courts held that cellular telephone users, if using their cellphones for personal, household purposes, can be considered residential telephone subscribers under the FCC’s NDNCR rule. Those district courts, while not deferring to the 2003 FCC order, considered it and found it persuasive. These holdings demonstrate an unfortunate, but unsurprising, reluctance by the federal district courts to recognize Congress’s meaningful distinction between residential phones and cellphones and to fully remove cellphones from the protections of the TCPA’s NDNCR provisions.
On a positive note, those courts did recognize that a defendant can still overcome the presumption that a cellphone is subject to the TCPA’s NDNCR provisions by demonstrating that the relevant cellphone subscriber did not use his or her cellphone for residential purposes. And in our experience in litigating putative class DNC claims, it is a rare (teetering on non-existent) case indeed in which class certification is appropriate for DNC claims given the individualized issues that predominate in evaluating DNC claims.
Pre-Loper, Court Found the FCC Got it Wrong.
Pre-Loper, multiple federal district courts held that cellphones did not fall under the protection of the TCPA’s NDNCR provisions. Turizo v. Subway Franchisee Adver. Fund Trust Ltd.[7] is one of those cases. But it has an interesting wrinkle. In finding that the TCPA’s NDNCR provisions didn’t apply to cellphones, the court addressed what it believed to be Congress’s purposeful distinction in the TCPA between cellular and residential telephones. Based on that distinction, the court found the FCC erred in the 2003 order, as “Congress intentionally withheld from the FCC any authority to create a registry that included cellular telephone numbers.”[8]
But despite that finding, the court ultimately held that cellphones are protected by the TCPA’s NDNCR provisions. The court’s holding was compelled by a prior decision from the Eleventh Circuit where it found that, under the Hobbs Act, only federal circuit courts can determine the validity of an FCC order.[9]
That same issue was recently addressed in Radvansky v. Kendo Holdings, Inc.[10] There, when faced with the argument of whether a cellphone is subject to the TCPA’s NDNCR provisions, the court didn’t even address whether that 2003 FCC order was incorrect. Instead, the court found it was bound to abide by that order due to that prior Eleventh Circuit decision. But the court did call on the Eleventh Circuit to reconsider its decision and to “let district courts do their job.”[11]
While the current trend on the cellphone/NDNCR issue post-Loper is unfavorable to those in the telemarketing industry, Turizo and Radvansky indicate that the district courts in the Eleventh Circuit aren’t as settled on the issue. It will be worth keeping an eye out for additional decisions from the Eleventh Circuit courts on this issue—and for other members of the TCPA defense bar to keep making our best arguments for why only Congress, not the courts or the FCC, should be doing any rewrites of the TCPA. Hopefully the Eleventh Circuit will consider the validity of the 2003 FCC order or reconsider its interpretation of the Hobbs Act sooner rather than later.
[1] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
[2] Lirones v. Lead Home Water Sols., LLC, CASE NO. 5:23-cv-02087, 2024 U.S. Dist. LEXIS 165900 (N.D. Ohio Sept. 16, 2024); Lyman v. Quinstreet, Inc., Case No. 23-cv-05056-PCP, 2024 U.S. Dist. LEXIS 123132 (N.D. Cal. July 12, 2024); Cacho v. McCarthy & Kelly LLP, 23-cv-11157 (LJL), 2024 U.S. Dist. LEXIS 117544 (S.D.N.Y. July 3, 2024).
[3] 47 U.S.C. § 227(c)(1).
[4] 47 U.S.C. § 227(c)(5).
[5] 47 C.F.R. § 64.1200(c)(2).
[6] 47 U.S.C. § 227(b)(1)(A)-(B).
[7] 603 F. Supp. 3d 1334 (S.D. Fla. 2022).
[8] Id. at 1340.
[9] Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302 (11th Cir. 2015).
[10] Radvansky v. Kendo Holdings, Inc., CIVIL ACTION FILE NUMBER 3:23-cv-214-TCB, 2024 U.S. Dist. LEXIS 145932 (N.D. Ga. Aug. 13, 2024)
[11] Id. at *7 n.2.