Oregon district court denies telemarketer's cell-phones aren't residential phone lines MTD with a recitation of caselaw

Oregon federal court isn't a hot bed of TCPA action, so it was nice to see it slap down a TCPA defendant's motion to dismiss with a nice recitation of case law post McLaughlin sure to help anyone else filing in the ninth circuit. The case is Wilson v. Hard Eight Nutrition LLC, 2025 U.S. Dist. LEXIS 122504, 2025 LX 238987.

Wilson v. Hard Eight Nutrition LLC_2025 U.S. Dist. LEXIS 122504.Pdf

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In this lawsuit, Mr. Wilson alleges that Hard Eight Nutrition send him at least three solicitation text messages to his cell phone without Mr. Wilson's consent in violation of 47 U.S. Code § 227(c), call restrictions to residential phone subscribers who registered their telephone numbers on the national do not call list. In Mr. Wilson's complaint, he alleged receiving the text messages on his cell phone (duh!).

Plaintiff further alleges that he "does not have a landline telephone number in his home[,]", that he uses his cell phone "for personal use only as one would use a landline telephone in the home," "primarily to communicate with friends and family, and also to schedule personal appointments and for other household purposes," He further alleges that he "is not reimbursed by a business for his cell phone plan."

Hard Eight Nutrition moved to dismiss using the oft tried strategy of cell phones aren't residential phone lines. As the court noted, the TCPA does not define "telephone subscriber" or "residential telephone subscriber." Section 227(c) does not even contain language that refers to "cellular telephone service." [unlike Section 227(b)].

As early as 2003 the FCC issued a rule that "wireless subscribers" were presumptively "residential subscribers" under the do-not-call provision and that wireless subscribers could register for the national do-not-call database

In the ninth circuit we move away front depending on the FCC's interpretation in Chennette v. Porch.com, Inc., 50 F.4th 1217, 1225 (9th Cir. 2022) ("[P]laintiffs' [mixed-use cell] phones are presumptively residential for purposes of § 227(c)" but "[d]efendants may overcome the presumption by showing that plaintiffs use their cell phones to such an extent and in such a manner that the presumption is rebutted")

But then Looper Bright came down, freeing up courts to no longer give binding deference to federal agency interpretation of laws, and then McLaughlin came down giving federal trial courts freedom to disregard any FCC interpretation it didn't like.

Telemarketers were sure that Looper Bright and now McLaughlin would be a huge game changer, that suddenly all the patron saints of telemarketers would now be able to basically strangle the TCPA's 30 year's out of date take on telemarketing that has been "interpreted" every time new technology that didn't exist when the law was enacted comes along.

My take on Looper Bright when it came down was that it wouldn't change much. Federal courts had long found creative arguments to ignore anything the FCC said that the courts didn't want to follow, and that more or less is exactly what happened. For many years TCPA court opinions have basically read "this ruling is for the following reasons and then almost as an afterthought would say something like oh yeah here is why the FCC supports me or here is why the FCC's interpretations don't apply here . . . "

Since federal trial courts were already ignoring the FCC and substituting their own reasoning, I didn't expect the McLaughlin case to change anything and what do you know, that's exactly what happened in Wilson. Hard Eight Nutrition argued that the Wilson court was now free to find that cell phones are not residential phone lines.

Defendant maintains that Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) "overturned prior law 'demand[ing] that courts mechanically afford binding deference to agency interpretations[]"' and that this Court, instead, must '"independently interpret the statute.'" (quoting Loper Bright, 603 U.S. at 399, 400). Defendant further argues that the 2003 FCC Order is wrong because the Commission improperly "reli[ed] on § 227(b) to expand liability under § 227(c)[.]" Id. at 11. As to Ninth Circuit precedent, Defendant argues that Chennette, which predates Loper Bright, does not bind this Court because the Ninth Circuit in Chennette "did not construe § 227(c) but deferred entirely to the FCC's interpretation[.]" . . . Defendant argues that "[t]he TCPA treats calls to residential and cellular phone lines as distinct, and [that] the terms are not used interchangeably."

The Wilson court disagreed. "It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." The purpose of § 227(c) is protecting telephone subscriber's privacy rights, and cell phone subscribers and land line subscribers have the same interests.

"Had Congress wished to limit section 227(c) to specified telephone technologies rather than specified telephone subscribers, it would have indicated somewhere in that section that the [Do Not Call] registry is limited to a 'residential telephone line,' as Congress used that term in the preceding subsection." . . . Because the two sections are not comparable in scope or structure, they cannot be compared apples-to-apples as Defendant argues.

Telemarketers like Hard Eight Nutrition keep coming back to court with the argument that "residential telephone subscriber" can only mean a phone with copper wires out the back, but the court lectured Hard Eight on the meaning of base words:

In 1991, when the TCPA was enacted, a subscriber was defined as one who "agree[s] to receive a periodical or service regularly[]."

A lot of courts fall down the rabbit hole of what is a "residential" phone line, which long ago used to simply be the phones that weren't "business" phone lines. But that clear bright line delineation rubbed many judges the wrong way [judges are in the business of deciding things and often don't like clear bright line delineation that robs them of the power to decide things] and this court fell into it a bit too but unlike many other courts, arrived at the simple conclusion.

"Residential" modifies "telephone subscribers." In 1991, Websters defined "residential" as "used as a residence or by residents." Residential, WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY. So, "residential telephone subscribers," refers 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—a use traditionally tied to the home—as opposed to a commercial or business use. "According to the TCPA's plain language and dictionary definitions of 'residence' and 'subscriber,' 'a residential subscriber is one who maintains a phone for residential purposes . . . i.e., for personal activities associated with his or her private, domestic life.'" . . . The TCPA distinguishes business telephone use from residential telephone use . . . Congress thus contemplated two different telephone uses—business use and residential use

So there you have it, one of the first post-McLaughlin to revisit cellular phones and residential telephone lines came to the same conclusion as before. And other federal trial courts will continue to thumb their noses at consumers same as before.

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, bankruptcy-related harassment, or even general legal related issues, we might research and feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.

Are telemarketers bothering you in Washington or Oregon?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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