If you find yourself involved in a Telephone Consumer Protection Act ("TCPA") case, there are two important things you should do: (1) ensure you are familiar with the TCPA and the necessary elements of a TCPA claim and (2) follow the court's orders. In Lawson v. Nations Health Grp., Inc.,1 it appears the plaintiff may have failed to do both, resulting in a recommendation that the case be dismissed.
The Plaintiff's TCPA Claim. In Lawson, the plaintiff's original complaint contained two TCPA claims, one under 47 U.S.C. § 227(b) (regulating calls made using an autodialer or a prerecorded voice), and one under 47 U.S.C. § 227(c) (regulating calls made to residential telephone numbers registered on the National Do-Not-Call Registry ("NDNCR") and the handling of company-specific do-not-call requests). The defendant filed a motion to dismiss. In response, the plaintiff filed an amended complaint. The plaintiff's amended complaint dropped the 47 U.S.C. § 227(b) claim, but kept the 47 U.S.C. § 227(c) claim. While the amended complaint is unclear, it appears the 47 U.S.C. § 227(c) claim was based on an alleged violation of the NDNCR rule ("DNC rule") in the Federal Communications Commission's TCPA-implementing regulations. See 47 C.F.R. § 64.1200(c)(2).
The TCPA's DNC Rule. The DNC rule prohibits making sales calls to residential telephone subscribers who have registered their telephone number on the NDNCR. Sales calls made with the called party's prior express invitation or permission, or pursuant to an established business relationship with the called party, are not subject to the DNC rule. See 47 C.F.R. § 64.1200(f)(15)(i)-(ii). For a person to have a claim based on a violation of the DNC rule, he or she must have received at least two calls in a 12-month period that violated the DNC rule.
The Court Dismisses the Amended Complaint. The court found the plaintiff's amended complaint to be confusing as to which part of the TCPA the plaintiff was claiming the defendant violated. Thus, the court dismissed the amended complaint, but gave the plaintiff one more opportunity to amend. To the extent the plaintiff was making a claim under 47 U.S.C. § 227(c), the court found that the plaintiff failed to sufficiently plead that he was a residential telephone subscriber, as the DNC rule requires. In the court's order dismissing the amended complaint but allowing the plaintiff to amend, the court instructed the plaintiff that: "If Plaintiff has a claim against Defendant for violating section 227(c)(5), then Plaintiff must specify the basic nature of the 'residential telephone subscriber' at issue, using clear and direct allegations regarding the residential telephone number implicated and any relevant do-not-call-registry information associated with that specific phone number."
Recommended Dismissal of the Second Amended Complaint. The plaintiff filed a second amended complaint. Plaintiff alleged (1) he had been on the NDNCR since 2008 and (2) he used his cellular "phone for residential purposes including calling friends and family" (here you can read about the argument for why cellphones are not subject to the protections of the DNC rule). The plaintiff did not list his telephone number that allegedly received the calls at issue and did not allege that that number itself was registered on the NDNCR. The defendant filed a motion to dismiss plaintiff's second amended complaint on the grounds that the plaintiff's allegations were still insufficient and that the plaintiff failed to follow the court's instructions.
The court referred the defendant's motion to the magistrate judge. When a motion to dismiss is referred to a magistrate judge, the magistrate judge provides a report and recommendation. The parties are then given the opportunity to object to that report and recommendation. After the objections are asserted, or if no objections are asserted, the court issues a final order.
The magistrate judge agreed with the defendant. Under the DNC rule, it is the residential telephone subscriber's telephone number, not the residential telephone subscriber, that must be registered on the NDNCR. Thus, the plaintiff's allegation that he had been on the NDNCR failed to establish his telephone number that received the calls at issue was on the NDNCR and was subject to the DNC rule. The magistrate judge also found that the plaintiff failed to follow the court's instructions to "use clear and direct allegations regarding the residential telephone number implicated and any relevant do-not-call registry information associated with that specific phone number." Therefore, the magistrate judge recommended that the court dismiss the plaintiff's second amended complaint. If the court adopts the magistrate judge's recommendation, it appears the plaintiff's second amended complaint will be dismissed with prejudice (plaintiff will not be allowed to amend or refile), as the court said it was the plaintiff's final opportunity.
This case serves as a reminder that for the DNC rule to apply to a telephone number, that telephone number must be registered on the NDNCR; it does not matter if that telephone number's subscriber has, or previously had, a different telephone number registered on the NDNCR. TCPA defendants facing DNC rule claims should pay close attention to whether the plaintiff has pled that the specific telephone number that allegedly received TCPA-violating calls was registered on the NDNCR.
This case also serves as a reminder of the importance of complying with court orders. When a court's order includes instructions for a party, follow them. It should have been relatively easy for the plaintiff to have complied with the court's instructions. But it is possible the plaintiff's telephone number that allegedly received the calls at issue wasn't registered on the NDNCR, which would explain why that wasn't alleged.
Footnote
1. CASE NO.: 23-cv-80893-CANNON/REINHART, 2024 U.S. Dist. LEXIS 225143 (S.D. Fla. Dec. 11, 2024).
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