Too Creative By Half: Court Rejects Argument that TCPA “Landline” Prohibitions Apply to “Residential Cell Phones”

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In TCPAland wonders never cease.

The latest entrant into our museum of TCPA curiosity is the Plaintiff who contends his cell phone is a landline because he uses it for residential purposes. This curious fellow believes he can sue a caller under both sections 227(b)(1)(A)(regulating calls to cell phones) and 227(b)(1)(B)(regulating calls to landlines) for the same phone call.

Observe: in Morgan v. U.S. Xpress, Inc., Case No., 3:17-cv-0085, 2018 WL 3580775 (W.D. VA July 25, 2018) the court encountered just such an argument and rejected it soundly:

The Court holds that the structure and language of the TCPA demonstrate that calls made to a cell phone are not calls made to a “residential telephone line,” and so Count One will be dismissed.

Easy enough.

The analysis is straightforward as well:

The structure of the statute makes it clear that a call can be to either a cell phone or residential line, and the statute addresses those two distinct possibilities in two different sections. Section 227(b)(1)(A)(iii) prohibits automated or prerecorded calls made “to any telephone number assigned to a … cellular telephone service ….” And Section 227(b)(1) (B) prohibits automated or prerecorded calls made “to any residential telephone line ….” These side-by-side provisions anticipate calls made to two different types of phones. Plaintiff’s arguments would erase that distinction.

And if you need a bit more, consider the practical issues arising from treating residential cell phones as landlines under the TCPA:

Finally, Plaintiff’s proposed readings creates practical problems. The finely reticulated scheme discussed above creates careful categories. It would be odd if a cell phone, largely used outside the home and at work, became a residential line just because it was brought home and thereby erased those statutory categories. How frequently would it need to be used at home before it became a residential telephone line? Would it revert to its previous state as a mere cell phone if you added a landline at your house? How would these things be proved? Thankfully, these difficult questions can be avoided simply by following the natural reading of the TCPA and treating cell phones and residential lines differently.

So there you have it. On to the next one friends.


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1 reply »

  1. We’ve also seen the flip side, where a plaintiff alleged his home phone was a “wireless” line in an attempt to take advantage of the cell phone provisions of the TCPA.

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