By: Jeffrey Backman, Esq. and Tracy Garcia, Esq.
In Schmitendorf v. Juicy’s Vapor Lounge, Inc., the District of Kansas denied class certification in a TCPA text-message case because the linchpin term “residential telephone subscriber” isn’t a one-size-fits-all label; it’s an individualized inquiry that overwhelms common issues.1
Plaintiff alleged Juicy’s texted former rewards members without maintaining adequate internal do-not-call procedures under 47 C.F.R. § 64.1200(d), and sought a damages class under Rule 23(b)(3) and an injunction under Rule 23(b)(2). The court’s core holding was that predominance fails because whether each recipient is a “residential telephone subscriber” is a fact-intensive, user-specific question that cannot be answered with common proof.
The court also discussed its interpretation of the phrase “residential telephone subscriber.” The court applied the ordinary meaning: a person who pays for and uses a telephone “at home,” i.e., for personal purposes in the home, not business purposes. While the court acknowledged that cellular telephones may qualify (another hotly contested issue among courts), that is not always the case, especially with mixed personal and work use. Hence, whether a person is a “residential telephone subscriber” depends, a lot. And the court rejected plaintiff’s attempt to reframe the test around Juicy’s purpose in collecting numbers (consumer transaction) rather than how each recipient actually used the telephone. That flips the inquiry on its head, according to the court.
As landlines fade and cell phones do everything everywhere all at once, “residential” status cannot and should not be presumed. Plaintiffs who define classes by “people we texted twice” but skip how those telephone numbers are used are walking into a predominance buzzsaw. Expect more courts to require granular, user-specific proof on “residential telephone subscriber” before certifying TCPA internal DNC classes.
For guidance on navigating TCPA compliance, contact our team. We can help you assess risk, develop strategies and stay ahead of evolving interpretations of “residential telephone subscriber” and related regulatory requirements.
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[1] No. 22-cv-02293-TC-GEB, 2025 WL 2966205 (D. Kan. Oct. 21, 2025).
