See, e.g., Dkt. No. 24, ¶ 56; see also Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022) (Under Section 227(c)(1), “the FCC issued regulations prohibiting ‘person[s] or entit[ies] [from] initiat[ing] any call for telemarketing purposes to a residential telephone subscriber unless [the] person or entity has instituted [certain listed] procedures for maintaining' a do-not-call list.” (quoting Charvat v. NMP, LLC, 656 F.3d 440, 443-44 (6th Cir. 2011))); Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022) (finding “that § 64.1200(d) was issued to further the privacy right in § 227(c),” so “the private right of action contained in § 227(c) reaches violations of § 64.1200(d)” (footnote omitted)).
See, e.g., Chennette v. Porch.com, Inc., 50 F.4th 1217, 1225 (9th Cir. 2022); Klassen v. Solid Quote LLC, 2023 WL 7544185, at *2 (D. Colo. Nov. 14, 2023); Tsolumba v. SelectQuote Ins. Servs., 2023 WL 6146644, at *5 n.3 (N.D. Ohio Sept. 20, 2023); Escano v. RCI LLC, 2022 WL 17251273, at *16 (D.N.M. Nov. 28, 2022), report and recommendation adopted, 2023 WL 34525 (D.N.M. Jan. 4, 2023); Powers v. One Techs., LLC, 2022 WL 2992881, at *3 (N.D. Tex. July 28, 2022); Barton v. Temescal Wellness, LLC, 525 F.Supp.3d 195, 202 (D. Mass. 2021); see also Murray v. Grocery Delivery E-Servs. USA Inc., 55 F.4th 340, 348 (1st Cir. 2022). However, Defendant contends that the FCC's interpretation of the TCPA is contrary to the statute's plain text.
In this procedural context, the Court should conclude that that Horton has alleged he is a “residential subscriber” for purposes of 47 C.F.R. § 64.1200(d). Powers v. One Tech., LLC, 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022) (Starr, J.). b. Factual allegations
While “§ 64.1200(d) was issued to further the privacy right in § 227(c),” so “the private right of action contained in § 227(c) reaches violations of § 64.1200(d),” Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022) (footnote omitted), “[t]he regulations in § 61.1200(d) are not directly concerned with the national do-not-call list, but the requirement that companies maintain internal do-not-call lists,” John v. Keller Williams Realty, Inc., No. 6:19-cv-1347-Orl-40DCI, 2020 WL 10502631, at *5 (M.D. Fla. Feb. 4, 2020) (emphasis in original)).
Resp. 3. Plaintiff points to other cases in the Fifth Circuit that have held that cell phones can be considered residential phones: Strange v. ABC Co., No. 19-1361, 2021 WL 798870, at *3-4 (W.D. La. Mar. 1, 2021); Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 131 (N.D. Tex. 2020); Powers v. One Technologies, LLC, No. 3:21-CV-2091, 2022 WL 2992881, at *3 (N.D. Tex. July 28, 2022); Horton v. Multiplan Inc., 3:21-CV-1542-S-BK, 2021 WL 5868328, at *5 (N.D. Tex. Nov. 24, 2021); and Callier v. Nat'l United Grp., No. EP-21-CV-71-DB, 2021 WL 5393829, at *8-9 (W.D. Tex. Nov. 17, 2021)). Resp. 4-6.
If a person or entity violates these delivery restrictions, § 227(c)(5) grants a right of private action to “[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection.” Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022); see also Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022) (finding “that § 64.1200(d) was issued to further the privacy right in § 227(c),” so “the private right of action contained in § 227(c) reaches violations of § 64.1200(d)” (footnote omitted)).
If a person or entity violates these delivery restrictions, § 227(c)(5) grants a right of private action to “[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection.” Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022); see also Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022) (finding “that § 64.1200(d) was issued to further the privacy right in § 227(c),” so “the private right of action contained in § 227(c) reaches violations of § 64.1200(d)” (footnote omitted)).
Section 302.101 does not apply to text messages, “[u]nder a plain reading of the [Texas Business and Commerce] Code.” Powers v. One Techs., LLC, No. 3:21-CV-2091, 2022 WL 2992881, at *4 (N.D. Tex. July 28, 2022). Plaintiff properly does not seek damages under § 302.101 for the three text messages he received from Defendant.
The parties have not cited, and the court has not found, authority from the Texas courts construing the meaning of “telephone call” as used in section 302.001(7). GVG Capital points to Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881 (N.D. Tex. July 28, 2022), holding that the Texas statute did not apply to text messages. In Powers, the court noted that, while Chapter 304 was amended in 2009 to provide a definition of “telephone call” encompassing text messages, the legislature did not similarly amend Chapter 302.
“[C]ourts have held that cellular telephones can qualify as residential telephones, so long as a plaintiff pleads that the cellular telephone is used for residential purposes.” Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-cv-1598-D, 2022 WL 562761 at *2 (N.D. Tex. Feb. 24, 2022) (collecting cases); accord Powers v. One Techs., LLC, No. 3:21-cv-2091, 2022 WL 2992881 *3 (N.D. Tex. July 28, 2022) (“the question of whether a subscriber is ‘residential' is fact-intensive and for practical reasons [the FCC, the agency tasked with regulating the TCPA,] ‘presume[s] [that] wireless subscribers who ask to be put on the national do-not-call list [are] residential subscribers.'” (quoting In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014 (2003))); but see Cunningham v. Creative Edge Mktg. LLC, No. 419CV00669ALMCAN, 2021 WL 3085415 at *4 (E.D. Tex. June 16, 2021), rep. & rec. adopted, No. 4:19-CV-669, 2021 WL 3085399 (E.D. Tex. July 20, 2021).