Federal Court Says Personal Cell Phones May Qualify for TCPA Do Not Call Protections
A federal court in Virginia has allowed a Telephone Consumer Protection Act (TCPA) claim involving promotional text messages to move forward, finding that a personal cell phone may qualify as a residential telephone line under the law’s Do Not Call provisions.
The decision came in McGonigle v. Dickey’s Barbecue Restaurants, Inc., where the plaintiff alleged that he received promotional text messages from Dickey’s Barbecue Restaurants even though his cell phone number was registered on the National Do Not Call Registry.
Dickey’s sought to dismiss the claim, arguing that the TCPA provisions at issue protect residential telephone subscribers and that a cell phone does not qualify as a residential telephone line. The court rejected that argument at this stage of the case.
Personal Use at the Center of the Dispute
According to the allegations described in the case, the plaintiff used the cell phone number for personal and household purposes. He alleged that the number was his only telephone number and that he used it to communicate with friends and family, make appointments, and conduct other household activities. He also alleged that he did not use the number for business purposes.
The court found those allegations sufficient to plausibly establish that the cell phone could qualify as residential for purposes of the TCPA claim. As a result, the court declined to dismiss the plaintiff’s Do Not Call claim on the basis that his number was a cell phone rather than a traditional residential telephone line.
The decision allows the claim to continue, but it does not establish that every cell phone automatically qualifies as a residential telephone line. The ruling instead addresses whether the plaintiff had alleged enough facts about the personal use of his number for the case to proceed.
Text Message Question Remains
The case also comes amid an ongoing legal question involving promotional text messages and the TCPA’s Do Not Call provisions. Courts have been considering whether text messages qualify as “telephone calls” for purposes of the TCPA’s private right of action related to Do Not Call regulations.
However, the Virginia court’s decision did not resolve that broader question. Instead, the ruling focused on whether the plaintiff’s cell phone could be treated as a residential telephone based on how he allegedly used the number. The developing issue of whether texts constitute calls under this portion of the TCPA remains largely untouched by the decision.
Treble Damages Request Dismissed
Dickey’s did receive a partial victory in its effort to dismiss the case. The court dismissed the plaintiff’s request for treble damages. According to the decision, the complaint did not sufficiently allege that Dickey’s knowingly or willfully violated the TCPA. The remainder of the motion to dismiss was denied, allowing the underlying claim to continue.
Dickey’s also sought to strike the plaintiff’s class allegations. The court declined to do so at this early stage of the litigation. The decision therefore leaves the central TCPA claim and the class allegations in place while removing the request for treble damages.
For now, the case continues with the court accepting, at the pleading stage, that a cell phone used for personal and household purposes may qualify as residential under the TCPA’s Do Not Call provisions.
