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)).
Yet, other courts in the Fifth Circuit have determined that calls to a cell phone may be construed as being made to residential subscribers. Hunsinger v. Buyers, No. 3:21-CV-1598-D, 2022 U.S. Dist. LEXIS 32319, at *8 (N.D. Tex. Feb. 24, 2022) (motion to dismiss denied because plaintiff's cell phone was “primarily used for personal, family, and household use,” and was, thus, sufficient to constitute a residential telephone) (Fitzwater, J.); Powers v. One Techs., LLC, No. 3:21-CV-2091, 2022 U.S. Dist. LEXIS 134034, at *7 (presumes that wireless subscribers who ask to be put on the national-do-not-call list are ‘residential subscribers' under § 64.1200(d) for purpose of motion to dismiss) (Starr, J.); Callier v. Nat'l United Grp., LLC, No. EP-21-CV-71-DB, 2021 U.S. Dist. LEXIS 223278, at *26 (W.D. Tex. Nov. 17, 2021) (47 C.F.R. § 64.1200(d) “applies to any cell phone being used as a residential phone”) (Briones, J.); Callier v. Capital, No. EP-21-CV-00011-DCG, 2021 U.S. Dist. LEXIS 126447, at *8-11 (W.D. Tex. Apr. 22, 2021) (default judgment for plaintiff granted on claims under § 227(c)(5) and § 64.1200(d) when calls had been received on plaintiff's cellphone) (Guaderrama, J.); Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 131 (N.D. Tex. 2020) (rejecting defendants' contention that “cell phones, as a matter of law, cannot be residential subscribers” in the context of a motio