Move Along: FRCP 12(c) Challenge Relating to TCPA Protection for Text Messages to a Number on the Do-Not-Call Registry Used in Part for Business Purposes Found Premature

Good morning, TCPAland.  We thought we would help start your day with an interesting case out of the Southern District of Ohio concerning the National Do Not Call Registry (“DNCR”).  As a preliminary matter, if you have not yet read Nadia’s great article on the DNCR, it is a must read.  As she states in that article, “[t]he DNCR is a national list of phone numbers submitted by consumers who want to limit the number of telemarketing calls they receive.”

The lawsuit in Blevins v. Premium Merchant Funding One, LLC, No.: 2:18-cv-377, 2018 WL 5303973 (S.D.Oh. October 25, 2018), arises out of two text messages sent to plaintiff by the defendant advertising defendant’s services relating to “Lines of Credit, Loans and Trade financing[.]”  The text messages were sent to plaintiff’s telephone number, which just so happens to be registered on the DNCR.  The interesting thing is that plaintiff is a small business owner who uses the telephone number for both business and personal purposes.

Therefore, based on plaintiff’s business use of the telephone number, defendant moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure (FRCP) 12(c), arguing that such use “voids” plaintiff’s TCPA protection for defendant’s text messages.  The argument apparently simply being that the DNCR protects strictly only a “residential telephone subscriber” from receiving unwanted communications.

The court, after a confusing reference to the portion of the TCPA pertaining to unsolicited advertisements sent by fax machine, disagreed.  In so doing, the court relied on precedent that the FCC has “decline[d] to exempt from the do-not-call rules those calls made to ‘home-based businesses[,]’ rather [reviewing] such calls as they are brought to our attention to determine whether or not the call was made to a residential subscriber.”  2018 WL 5303973 at *2.  Accordingly, the court found that dismissing the case on an FRCP 12(c) motion to be premature, since “courts have routinely looked at the facts and circumstances surrounding a particular case before deciding whether TCPA protection extended to a particular telephone number that was used for both business and residential purposes.”  Id.

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