Alert

Cellphone Users Are Not Categorically Excluded From Definition of “Residential Subscriber” Under TCPA

July 23, 2024

On July 3, 2024, the United States District Court for the Southern District of New York held that “users of cellphones are not categorically excluded from the definition of ‘residential subscriber’ under the TCPA (Telephone Consumer Protection Act).” [1]

Case Background

In Cacho, plaintiff claimed that he used his cellular phone exclusively for personal, family, and household purposes. The cellphone was registered in plaintiff’s name under the National Do Not Call Registry. Despite this, plaintiff began to receive calls soliciting him for legal services from the defendant. Plaintiff then filed suit and asserted claims against defendant for violations of the TCPA as well as state law related to telemarketing solicitations.   

The defendant moved to dismiss, arguing that the TCPA claim failed since the calls were made to a cellular number. Moreover, defendant asserted that the term “residential,” as used in the phrase “residential subscriber” under the TCPA, denotes a landline, not a cellular line, and, as such, that only persons who subscribe to landlines and not those who subscribe to cellular lines can be “residential subscribers.”

Court’s Analysis

The Court rejected this claim, observing that “[c]arried to its logical limits, that argument would admit of absurd consequences—ones that Congress could not have intended and contrary to Congress’s purposes” and finding that “perfectly consonant with the statute that residential subscriber would be read to include those individuals who use a cellphone for household purposes.”

Nevertheless, the Court concluded that the Complaint “cannot be sustained based on Plaintiff’s legal conclusions, couched as factual allegations” because it “is bereft of any allegation from which one could reasonably infer that Defendant knew or should have known that the telemarketers were violating the TCPA and its implementing regulations.”

Key Takeaway from the Cacho Decision

Cacho makes clear that courts continue to employ the “substance-over-form” approach in interpreting consumer protection laws and regulations to ensure the fullest extent of coverage intended. 

[1] Cacho v. McCarthy & Kelly LLP, 23-cv-11157 (LJL), 2024 WL 3293628 (S.D.N.Y. July 3, 2024).

This item also appeared in the ABA Business Law Section’s July 2024 in Brief: Business Regulation & Regulated Industries.