By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In a recent statutory construction decision from the Southern District of Illinois, the court held that cellular telephone users can qualify as “residential telephone subscribers” for purposes of Do Not Call (DNC) claims, allowing such claims to proceed past the pleadings stage.
The court concluded that the TCPA’s Section 227(c) protects “residential telephone subscribers” regardless of the underlying phone technology and adopted the FCC’s framework that wireless subscribers may participate in the national DNC registry. Critically, the court recognized a presumption that wireless subscribers who place their numbers on the national DNC list are “residential subscribers,” while acknowledging that discovery may rebut that presumption if the facts show use inconsistent with “residential” use. It’s this last comment from the court that is particularly interesting in that it further demonstrates how DNC cases are inappropriate for class certification, since every cellular telephone user would be subject to discovery and unique facts as to the appropriateness of any claim that they are entitled to protection.
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