Opinion
Civil Action No. 1:19-cv-03735-SDG
05-15-2020
ELCINDA PERSON, Plaintiff, v. TECHNICAL EDUCATION SERVICES, INC. d/b/a AVIATION INSTITUTE OF MAINTENANCE, Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Technical Education Services, Inc. d/b/a Aviation Institute of Maintenance's ("Aviation Institute") partial motion to dismiss [ECF 13]. For the following reasons, Aviation Institute's motion is DENIED.
I. BACKGROUND
The following facts are treated as true for purposes of this Order. Person asserts this putative class action against Aviation Institute to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act ("TCPA"), codified at 47 U.S.C. § 227 et seq. According to Person, Aviation Institute is a corporation that uses telemarketing strategies, including automated dialers and prerecorded messages, to attract new customers. Person alleges Aviation Institute called his personal cell phone on seventeen separate occasions between May and June 2019 to market its aviation education programs. Each call began with a pre-recorded message. Person did not consent to receiving Aviation Institute's calls; instead, Person informed Aviation Institute of his lack of interest in its services on at least seven occasions. Despite Person's requests, Aviation Institute continued to call his cell phone.
Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 (11th Cir. 1999) ("At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.").
ECF 11, at 1.
Id. ¶¶ 34-35.
Id. ¶¶ 38-39 43, 47.
Id. ¶45.
Id. ¶¶ 46-49.
Id. ¶ 50.
On August 19, 2019, Person initiated this action, asserting two claims against Aviation Institute for violation of the TCPA. Count I alleges a violation of the TCPA's prohibition on automated telemarketing calls under 47 U.S.C. § 227(b)(1)(A)(iii). Count II contends Aviation Institute violated the TCPA's internal "do-not-call" provisions under 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(d). In addition to his individual claims, Person seeks to represent two putative nationwide classes of individuals who received unwanted, automated telemarketing calls from Aviation Institute for the purpose of selling or marketing its products.
ECF 1.
ECF 11, ¶¶ 64-67.
Id. ¶¶ 68-74.
Id. ¶ 51.
On September 17, 2019, Person filed the instant Amended Complaint, asserting the same two violations of the TCPA against Aviation Institute. On September 30, 2019, Aviation Institute filed its partial motion to dismiss, seeking only the dismissal of Count II of the Amended Complaint. Person filed his response to Aviation Institute's motion on October 1, 2019. Aviation Institute filed its reply on October 15, 2019.
ECF 11.
ECF 13.
ECF 14.
ECF 19.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this standard does not require "detailed factual allegations," the Supreme Court has held that "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To withstand a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face when a plaintiff pleads sufficient factual content for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Am. Dental Ass'n, 605 F.3d at 1289 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. A complaint must also present sufficient facts to "'raise a reasonable expectation that discovery will reveal evidence' of the claim." Am. Dental Ass'n, 605 F.3d at 1289 (quoting Twombly, 550 U.S. at 556).
At the motion to dismiss stage, "all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). This principle, however, does not apply to legal conclusions. Iqbal, 556 U.S. at 678.
III. DISCUSSION
Aviation Institute contends Count II of Person's Complaint must be dismissed because the "do-not-call" provisions of the TCPA solely apply to "residential telephone subscribers," and Person only alleges Aviation Institute called his cell phone.
A. Background of the TCPA
Congress enacted the TCPA in 1991 "to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of . . . automatic dialers." Ashland Hosp. Corp. v. Serv. Emp. Int'l Union, Dist. 1199 WV/KY/OH, 708 F.3d 737, 740 (6th Cir. 2013). Congress found that "automated or prerecorded telephone calls made to private residences . . . were rightly regarded by recipients as an invasion of privacy." Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1265 (11th Cir. 2019) (citing Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012)). The TCPA primarily prohibits four types of conduct:
First, the Act makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any emergency telephone line, hospital patient, pager, cellular telephone, or other service for which the receiver is charged for the call. Second, the TCPA forbids using artificial or prerecorded voice messages to call residential telephone lines without prior express consent. Third, the Act proscribes sending unsolicited advertisements to fax machines. Fourth, it bans using automatic telephone dialing systems to engage two or more of a business' telephone lines simultaneously.Mims, 565 U.S. at 373 (internal citation omitted).
In addition, Congress authorized the Federal Communications Commission ("FCC") to "promulgate regulations concerning the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object." Cordoba, 942 F.3d at 1265. See also 47 U.S.C. § 227(b)(2) ("The Commission shall prescribe regulations to implement the requirements of this subsection."). The FCC, in turn, "creat[ed] a national do-not-call list and require[ed] telemarketers to maintain their own internal do-not-call lists." Cordoba, 942 F.3d at 1265 (emphasis in original). See also 47 C.F.R. § 64.1200.
For a telemarketer's internal do-not-call list, the FCC stated:
No person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.47 C.F.R. § 64.1200(d).
A telemarketer must, at a minimum, "have a written policy for maintaining an internal do-not-call list, train their personnel on its existence and use, put people on the list when they ask, and refrain from calling individuals on the list for five years after a request is made." Cordoba, 942 F.3d at 1265 (citing 47 C.F.R. § 64.1200(d)). If a telemarketer does not implement these procedures, each call made constitutes a violation of the TCPA and FCC regulations. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(d).
B. The Relevant Provisions of the TCPA Apply to Cell Phones.
In Count II, Person asserts a violation of the TCPA under 47 U.S.C. § 227(c)(5). Aviation Institute argues Count II fails as a matter of law because the alleged solicitations to Person's cell phone did not violate the "do-not-call" provisions of the TCPA, as this subsection applies solely to "residential telephone subscribers."
The TCPA provides a private right of action for any "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." 47 U.S.C. § 227(c)(5). As directed by Congress, the FCC promulgated regulations, codified in 47 C.F.R. § 64.1200. According to § 64.1200(d): "No person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity." (Emphasis added.) Thus, to succeed on this claim, Person must show that Aviation Institute made the at-issue calls to him as a "residential telephone subscriber." See also Stevens-Bratton v. TruGreen, Inc., No. 2:15-2472, 2020 WL 556405, at *4 (W.D. Tenn. Feb. 4, 2020) ("To succeed on a claim alleging violations of the relevant regulations, a plaintiff must prove, inter alia, that she was a 'residential telephone subscriber.'").
The TCPA itself does not define the term "residential telephone subscriber." The FCC, as directed by Congress, has stated that the term includes cell phones for the purposes of 27 U.S.C. § 227(c)(5). According to 47 C.F.R. § 64.1200(e):
The rules set forth in paragraph (c) and (d) of this section [47 C.F.R. § 64.1200] are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers to the extent described in the Commission's Report and Order, CG Docket No. 02-278, FCC 03-153, "Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991."(Emphasis added.)
In the referenced report and order, the FCC stated that "residential subscriber" encompasses "wireless subscribers" because it is "well-established that wireless subscribers often use their wireless phones in the same manner in which they use their residential wireline phones." In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, at ¶¶ 33-36 (F.C.C. June 26, 2003). The FCC expressly rejected the argument that Congress intended the term "residential subscribers" to be defined so narrowly as to exclude cell phones. Id. ("Nextel's definition of 'residential subscribers' is far too restrictive and inconsistent with the intent of section 227."). Instead, according to the FCC, "Congress has indicated its intent to provide significant protections under the TCPA to wireless users." Id.
District courts faced with this precise issue have held that the definition of "residential telephone subscriber" may include cell phones for the purposes of § 227(c)(5). E.g., Smith v. Truman Rd. Dev., LLC, No. 4:18-cv-00670-NKL, 2020 WL 2044730, at *10 (W.D. Mo. Apr. 28, 2020) ("A cell phone user can qualify as a residential telephone subscriber under 47 C.F.R. § 64.1200(c) and (d)."); Boger v. Citrix Sys, Inc., No. 8:19-cv-01234-PX, 2020 WL 1033566, at *4 (D. Md. Mar. 3, 2020) ("Although 47 C.F.R. § 64.1200(d) refers to a 'residential telephone subscriber,' section 64.1200(e) expressly makes those regulations applicable to . . . wireless telephone numbers."); Stevens-Bratton, 2020 WL 556405, at *4 ("A cellular telephone can satisfy the 'residential telephone subscriber' element of § 64.1200(c) & (d)."); Izor v. Abacus Data Sys., Inc., No. 19-cv-01057-HSG, 2019 WL 3555110, at *2 (N.D. Cal. Aug. 5, 2019) ("The Court thus finds no categorical bar to Plaintiff alleging a violation of 47 U.S.C. § 227(c)(5) through conduct violating 47 C.F.R. § 64.1200(c)(2) and (d), as applied to solicitations to his wireless telephone number under 47 C.F.R. § 64.1200(e)); Hodgin v. Parker Waichman LLP, No. 3:14-cv-733-DJH, 2015 WL 13022289, at *3 (W.D. Ky. Sept. 30, 2015) ("[Defendant's] assertion that cell phone numbers are not allowed on the national do-not-call list is meritless . . . the FCC has been clear in interpreting 'residential subscriber' to include cell phones."); Wagner v. CLC Resorts & Devs., Inc., 32 F. Supp. 3d 1193, 1197 (M.D. Fla. 2014) (holding plaintiff stated claim under § 227(c)(5) for calls made to cell phone).
These courts have generally required the plaintiff to present some modicum of evidence that he used the cell phone for "residential purposes." E.g., Stevens-Bratton, 2020 WL 556405, at *4 ("Courts have interpreted the 'residential telephone subscriber' element to require proof that the number called was used for 'residential purposes.'"); Lee v. Loandepot.com, LLC, No. 14-cv-01084-EFM, 2016 WL 4382786, at *6 (D. Kan. Aug. 17, 2016) ("To prevail under 47 C.F.R. § 64.1200(c)(2), Plaintiff must establish that his cellular number is used for residential purposes."); United States v. Dish Network, L.L.C., 75 F. Supp. 3d 942, 1024 (C.D. Ill. 2014) ("The FCC created an administrative presumption that would allow wireless phone users to register on the Registry, but the complaining registrant would still need to show that the phone was used for residential purposes."), vacated in part on other grounds, 80 F. Supp. 3d 917 (C.D. Ill. 2015).
Aviation Institute argues that some district courts have found that a cell phone user categorically fails to qualify as a "residential telephone subscriber." E.g., Cunningham v. Politi, No. 4:18-cv-00362-ALM-CAN, 2019 WL 2519702, at *4 (E.D. Tex. Apr. 26, 2019), report and recommendation adopted, No. 4:18-cv-362, 2019 WL 2526536 (E.D. Tex. June 19, 2019) (collecting cases); Cunningham v. Spectrum Tax Relief, LLC, No. 3:16-2283, 2017 WL 3222559, at *3 (M.D. Tenn. July 7, 2017), report and recommendation adopted, No. 3:16-cv-02283, 2017 WL 3220411 (M.D. Tenn. July 28, 2017); Cunningham v. Rapid Response Monitoring Servs., Inc., 251 F. Supp. 3d 1187, 1201 (M.D. Tenn. 2017); Cunningham v. Caribbean Cruise Lines, Inc., No. 15-62580-CIV, 2016 WL 7494871, at *2 (S.D. Fla. Dec. 29, 2016). However, none of these courts appear to have considered the application of 47 C.F.R. § 64.1200(e) or the 2003 FCC Order, as expressly required by the TCPA. The Court finds Aviation Institute's argument without merit because it too suffers from this fatal flaw. See Izor, 2019 WL 3555110, at *2 ("Defendant overlooks 47 C.F.R. § 64.1200(e), which extends the protections afforded by subsections (c) and (d) to solicitations to wireless telephone numbers. In addition, Section 64.1200(e) by its terms incorporates solicitations to wireless numbers as described in a 2003 FCC rule.").
In sum, 27 U.S.C. § 227(c)(5) creates a private right of action for the violation of the FCC's regulations—which define a "residential telephone subscriber" to include cell phone users—but the plaintiff must present some modicum of evidence that the cell phone was used for residential purposes. At the pleading stage, Person has satisfied this burden. In the Amended Complaint, Person alleges his telephone number is registered to a cellular telephone service and not associated with a business. Instead, Person alleges his cell phone is his only telephone number, and he uses the number for residential and personal purposes. While discovery may provide contrary evidence as to the circumstances surrounding Person's use of his cell phone, he has sufficiently alleged that he used his cell phone for residential purposes during the relevant time period. Boger, 2020 WL 1033566, at *4 ("[T]he Complaint does not foreclose that Boger's cellphone functioned as a residential telephone number for purposes of the statute. Although Citrix's argument may be of merit in the end, resolution is premature. Discovery will proceed as to the circumstances surrounding Boger's cell phone use."). Therefore, the Court finds Aviation Institute's argument unavailing.
ECF 11, ¶¶ 38, 40.
Id. ¶¶ 39, 41-42.
For the first time in its reply brief, Aviation Institute additionally argues Count II must be dismissed because Person did not allege sufficient facts to support his TCPA claim [ECF 19, at 8]. The law is clear that "a court should not consider arguments raised for the first time in a reply brief." Reliance Ins. Co. of Illinois v. Richfield Hosp. Servs., Inc., 92 F. Supp. 2d 1329, 1332 (N.D. Ga. 2000). Therefore, the Court declines to consider Aviation Institute's new argument raised in its reply brief.
IV. CONCLUSION
For the foregoing reasons, Aviation Institute's partial motion to dismiss [ECF 13] is DENIED. Aviation Institute shall file its Answer to the Amended Complaint within 14 days after entry of this Order. The parties shall file a revised joint preliminary report and proposed scheduling order within 30 days after entry of this Order. Discovery shall commence 30 days after Aviation Institute files its Answer.
SO ORDERED this the 15th day of May 2020.
/s/_________
Steven D. Grimberg
United States District Court Judge