Federal court rebuffs telemarketer's latest attempt to exclude cell phones from TCPA
- Peter Schneider
- Jul 24
- 7 min read
Updated: 2 days ago
I wrote a few days ago that I didn't expect Looper Bright and now McLaughlin to change the TCPA landscape much. Courts have been doing what they want for a long time, so just as an Oregon court rejected the cell-phones-aren't-residential-telephone-lines nonsense, a California court has followed the same path in Ferrell v. Colourpop Cosmetics, LLC, No. 2:25-cv-01324-SPG-AJR, 2025 U.S. Dist. LEXIS 140893 (C.D. Cal. July 22, 2025).
Starting with the background, Ms. Ferrell is the subscriber and customary user of a cell phone number with area code 918, which is used for personal purposes and is not associated with a business. Plaintiff registered this cell phone number to the National Do Not Call Registry at least thirty days prior to any calls or text messages at issue. From October 2024 to January 2025, Plaintiff received marketing text messages from Defendant, which were intended for someone other than Plaintiff. Plaintiff did not request information or promotional materials from Defendant and did not give Defendant permission to deliver the text messages.
Colourpop responded with a motion to compel arbitration, and a motion to dismiss. This article just discusses the motion to dismiss. The motion to compel arbitration went down like a lot of them, she says she didn't ask for the calls, Colourpop says she did. Ergo, fact issue for a jury.
Colourpop, like many telemarketers these days, believes it is open season on cell phones, arguing that they can't be "residential telephone lines" under the TCPA. These telemarketers argue that
This court, in the ninth circuit, put out some nice reasoning rejecting this here.
The Court is not convinced that Chennette has been "effectively overruled" by subsequent Supreme Court decisions. In Loper, the Supreme Court abrogated the doctrine of "Chevron deference" and returned to "the traditional rule that 'questions of statutory interpretation . . . are for the courts to resolve, giving appropriate weight'—not outright deference—'to the judgment of those whose special duty is to administer the questioned statute.'" Loper, 603 U.S. at 390 n.3 (quoting NLRB v. Hearst Publ'ns., Inc., 322 U.S. 111, 130-31 (1944)). It is not clear that the Ninth Circuit's decision in Chennette ran afoul of Loper. While the Chennette court did rely heavily on the FCC's interpretation of the statutory language, it did not explicitly apply the two-step framework from Chevron. See Chennette, 50 F.4th at 1223-25. And Loper itself does not prohibit all reliance on agency interpretations of statutory language. See Loper, 603 U.S. at 388. Moreover, to the extent the Chennette court did apply an incorrect framework, it is far from clear that the Ninth Circuit would reach a different result under the Loper framework.
The Ferrell court said that Chennette wasn't decided as a slavish obedience to the FCC's ruling, but merely persuaded by the reasoning. This is why courts, at least those in the ninth circuit, are probably immune to Looper Bright and now McLaughlin. Our rulings were already decided based on persuasion, not binding authority. Taking the binding authority away in Looper Bright and now McLaughlin, the persuasion remains.
And here is where the telemarketing toady's get all hot under the collar:
However, even if the Court were not bound by Chennette and could instead conduct an independent analysis of the statutory text, the Court would not conclude that the term "residential telephone" as used in 47 U.S.C. § 227(c)(1) excludes all cell phones. Starting with the plain language of the statute, § 227(c) confers on the FCC the obligation to "initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object." 47 U.S.C. § 227(c). In 1991, when the TCPA was enacted, Webster's Dictionary defined "residential" as "used as a residence or by residents." See Wilson v. Hard Eight Nutrition LLC, No. 6:25-cv-00144-AA, 2025 WL 1784815, at *5 (D. Or. June 27, 2025) (quoting Residential, WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY). In the context of the statute, the word "residential" modifies the phrase "telephone subscribers," requiring courts to look to whether the telephone subscription is for "residential" use in the home, or for another purpose, such as business. This distinction between "residential subscribers" and "business subscribers" is the same one drawn elsewhere in the statute. See 47 U.S.C. § 227(a)(2)(A). Thus, the term "residential telephone subscribers" can be understood to refer to "individuals, subscribers, who make regular payments to use telephone service at home, that is, people who use a telephone for a personal or private purpose." Wilson, 2025 WL 1784815. Under the plain language of the statute, it is the use of the phone, not the technology underlying the phone, that determines whether the phone qualifies for protection. This interpretation is consistent with the statutory focus on "privacy rights," because the intrusion on telephone subscribers' privacy would be the same when a call is made to any personal phone used in the home, whether wireline or wireless.
Another argument to be on your guard to rebut is the whole but § 227(b) distinguishes between these two terms.
Defendant points out that, elsewhere, the TCPA distinguishes between the terms "cellular telephone service" and "residential telephone lines." Defendant contends that this demonstrates that Congress did not intend to cover cell phone subscribers in § 227(c). It is true that § 227(b) distinguishes between these two terms: § 227(b)(1)(A)(iii) prohibits calls to lines associated with a "cellular telephone service" by "any automatic telephone dialing system or an artificial or prerecorded voice," whereas § 227(b)(1)(B) prohibits initiating calls to "residential telephone lines" only by "an artificial or prerecorded voice." But the fact that § 227(b) distinguishes between these terms does not mean that § 227(c) must exclude cell phones used for residential purposes. As several courts have pointed out, the scope and structure of § 227(b) are "markedly different" than that of § 227(c). Cacho v. McCarthy & Kelly LLP, 739 F. Supp. 3d 195, 201 (S.D.N.Y. 2024). Section 227(b) establishes certain restrictions on the "use of automated telephone equipment" and distinguishes among recipients not based on their privacy interests but based on the cost of receiving calls on particular transmission systems. See 47 U.S.C. § 227(b)(1)(A)(iii) (imposing broader restrictions on automated telephone dialing for "any service for which the called party is charged for the call"); Lyman v. QuinStreet, Inc., No. 23-cv-05056-PCP, 2024 WL 3406992, at *4 (N.D. Cal. July 12, 2024) ("[T]he statutory text suggests that the reason cellular phone lines were subjected to broader restrictions was that recipients of calls on such lines were generally charged for the call."). Section 227(c), by contrast, is titled "[p]rotection of subscriber privacy rights" and, as discussed above, focuses on the use to which the phone is put and the effect on subscribers' privacy rights, rather than the underlying technology. Importing a distinction used in § 227(b) would thus make little sense. Importantly, § 227(c) "never references any such thing as a 'residential telephone;' only 'telephone subscribers' and 'residential subscribers.'" Jackson v. Direct Building Supplies LLC, No. 4:23-CV-01569, 2024 WL 184449, (M.D. Pa. Jan. 17, 2024). If Congress intended to limit § 227(c) based on the transmission technology of the phone, instead of the character of the subscription, it would have done so; the different language used in §§ 227(b) and (c) shows that Congress did not intend parallel meanings of these two sections. That Congress distinguished in a separate provision of the statute between "residential telephone lines" and "cellular telephone service" does not mean "the two groups cannot overlap" where Congress used different language. See Lyman, 2024 WL 3406992.
Yes, it is a more complicated argument for pro-se's to make on a law that isn't very well written, but it will be years before Telemarketers get Looper Bright and now McLaughlin out of their system and it is going to get worse before it gets better.
*** Update
Another defendant tried the ole cell-phone's-are-not-residential, only to have the district court rule that they are in Isaacs v. USHealth Advisors, LLC, No. 3:24-cv-00216-LMM, 2025 U.S. Dist. LEXIS 152625 (N.D. Ga. Aug. 7, 2025).
Defendant argues that the term "residential subscriber" encompasses only users of landline, home phones. Specifically, Defendant contends that, because the term "residence" refers to a person's home or abode, "residential subscriber" excludes cell phones, which can be used outside of the home. Plaintiff responds that the TCPA does not categorically exclude cell phone users and, because Plaintiff uses his cell phone only for personal purposes rather than business purposes, the TCPA applies to the text messages he received. The Court agrees with Plaintiff. A "subscriber" is a "person who makes a regular payment in return for . . . access to a commercially provided service." The term "residential" modifies "subscribers," meaning that the TCPA applies to a certain type of phone subscriber rather than to a particular type of phone technology. The ordinary definition of "residence" is the "act or fact of living in a given place for some time." Thus, applying the ordinary definition of "residential" to the term "subscriber," a "residential subscriber" is a person who maintains a phone for the purposes of their private residence rather than for commercial or business purposes. In other words, a residential subscriber is a person who uses their phone for activities associated with their private, domestic life.
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
Comments