A Plaintiff's Home Telephone Line May Not Be “Residential” for Purposes of the TCPA

October 9, 2014 by Isaac J. Colunga, Partner

The TCPA generally prohibits companies from making telephone calls to residential telephone lines using an artificial or pre-recorded voice without consent.  47 U.S.C. 227(b)(1)(B).  On the flip side, the TCPA does not prohibit companies from making telephone calls to business telephone lines using an artificial or pre-recorded voice.  When a plaintiff files suit under Section 227(b)(1)(B), then, one of the first questions that should come to mind for any defense lawyer is whether the telephone line that the defendant called is actually “residential.” 
Consider the scenario in which a small business owner works out of a home office.  It’s possible that the small business owner uses its home telephone number as its primary work number.  And the small business owner might list its home telephone number on its website, business cards, in the phone book, in business directories, and in many other publically-available sources.  In other words, the small business owner may hold out its home phone number as its business phone number, such that the general public can’t tell the difference between the two.  In such cases, is a defendant liable under the TCPA if it gathers the small business owner’s home telephone phone number from a publically-available source and makes a pre-recorded call to that number?  Maybe not.
On October 2, 2014 the district court in Bank v. Independence Energy Group LLC, No. 12-1369, 2014 WL 4954618 (E.D.N.Y. Oct. 2, 2014) considered this question and commented that, depending on the circumstances, if the plaintiff holds out its home phone number as a business number to the general public, the number would not qualify as a “residential telephone line” under the TCPA.  In making this comment, the court rejected the notion that whether a telephone line is considered “residential” or “business” should be determined based solely on how the phone line is registered with the phone company.  The court also distanced itself from a state-court Missouri case that reached the opposite conclusion.  See Margulis v. Fairfield Resorts, Inc., No. 03-8703, 2004 TCPA Rep. 1292 (Mo. Ct. App. 2004).  The court explained that how the number is registered with the phone company is a good “starting point” in the analysis, but “if the subscriber holds out such a telephone number to the general public as a business line, the line should not be considered ‘residential’ for the purposes of the TCPA – even if it is registered as ‘residential’ with the telephone company.”  Id. at *3.  While these comments shed light on the issue, the district court could not decide the question definitively because the defendant raised the argument in a Rule 12(b)(6) motion.  The court ultimately denied the motion based on plaintiff’s allegations, noting that with a little more discovery the question could be resolved.  
Although we’re left without a definitive ruling, Bank v. Independence Energy serves as an excellent example of how federal courts may view this issue in future cases.  Until the FCC tells us differently, simply registering a telephone number as “residential” with the phone company may not be enough for plaintiffs to establish that their number is indeed “residential” for purposes of the TCPA.
Isaac J. Colunga has extensive experience in the TCPA and its corresponding regulations. He actively defends companies against class actions in federal courts nationwide stemming from fax advertisements, autodialed calls and texts to cell phones, and calls to registrants on the national Do Not Call list.  He can be reached at 312-726-1567 or isaac.colunga@icemiller.com.

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