By: Jeffrey Backman, Esq. and Roy Taub, Esq.
For years, companies and consumers have wrestled with whether the TCPA’s National Do-Not-Call (DNC) protections for “residential telephone subscribers” apply to cell phones and text messages. Recent decisions underscore that the issue remains unsettled in important ways, even as more courts conduct their own statutory analyses following a Supreme Court decision that loosened prior constraints on reviewing FCC interpretations. A new Northern District of Georgia decision in Loudermilk v. Maelys Cosmetics offers a clear window into the debate—and its practical stakes.
In Loudermilk, the plaintiff alleged he received repeated telemarketing texts to a personal cell number registered on the National DNC Registry for over twenty years, despite requesting that the sender stop and being told he was “successfully unsubscribed.” He sued under 47 U.S.C. § 227(c) and related FCC regulations, asserting failures in internal DNC procedures and DNC Registry compliance.
The defendant moved to dismiss, arguing Section 227(c)’s DNC rules protect only “residential telephone subscribers,” not cellular users.
The court ultimately followed other Northern District of Georgia decisions post-McLaughlin (Isaacs and Radvansky) in concluding that “residential subscriber” turns on the nature of the user (personal/residential vs. business), not the technology (landline vs. cellular). On practical grounds, the court found a landline-only reading untenable given the prevalence of cell phones as the primary or sole home device, and inconsistent with the Act’s privacy-protective purpose.
The court further noted that other courts, exercising independent judgment after McLaughlin, have found that DNC protections extend to cell phones and text messages used for personal purposes. Applying that framework, the court concluded that the plaintiff plausibly alleged “residential subscriber” status by alleging personal, non-business use of his cell phone.
The reality is that post-McLaughlin, courts are increasingly conducting fresh statutory analyses of the meaning of “residential subscribers” under Section 227(c). Some, including the Northern District of Georgia in Loudermilk, read the term to protect personal-use cell phones from unwanted telemarketing texts and calls tied to the DNC regime, emphasizing subscriber type over technology. Others have concluded this section of the TCPA to be inapplicable to cellular telephones and text messages. Helpful to defending against these claims, however, is the fact that even those courts that have extended TCPA DNC protections to cell phones often focus on whether the subscriber uses the number for personal/residential, not business, purposes—inviting factual disputes that could preclude class certification and liability. Loudermilk highlights this by crediting the plaintiff’s allegations of personal use. Until appellate clarity emerges, businesses should assume, however, that DNC rules may apply to personal cell phones and texts and calibrate compliance programs accordingly.
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