Friday, December 18, 2020
Guys like Craig Cunningham leap for pleasure each time a case like Cunningham v. Britereal Mgmt., Civil No. 4:20-cv-144-SDJ-KPJ, 2020 U.S. Dist. LEXIS 23613 (E.D. Tex. November 20, 2020), adopted, 2020 U.S. Dist. LEXIS 235956 (Dec. 16, 2020) is handed down. Sure he beat an errant Stoops argument lobbed on the pleadings stage (it by no means works peoples), however extra importantly—he misplaced his 227(c) declare with the Courtroom discovering that DNC claims don’t apply to calls to residential cell telephones.
So why would Cunningham be completely satisfied that he misplaced that argument?
As a result of this one little case may embolden a whole bunch (hundreds?) of companies to start out chilly calling cell telephones pondering that the TCPA’s restrictions forbidding calls to “residential” numbers listed on the DNC doesn’t apply. And meaning a ton extra money for serial plaintiffs like Mr. Cunningham.
Regardless of the seemingly clear language of the statute the FCC has issued a ruling clearly together with cell telephones used for residential functions inside the scope of the TCPA’s DNC prohibitions. Assuming that FCC ruling is binding—which is all of a sudden a questionable proposition—many dozens of instances have held that calls to residential cell telephones which are on the DNC are actionable in TCPA claims below 227(c). Certainly, the identical day Cunningham was adopted, the D. N.M. turned in regards to the 100th case to succeed in that conclusion. See monster string cite at Mestas v. Chw Group, No. 19-CV-792 MV, 2020 U.S. Dist. LEXIS 236357 (D. N.M. December 16, 2020).
The true situation in these instances is whether or not the telephone was used for enterprise or residential functions—which is normally a difficulty for the jury and ought to forestall certification generally. However the argument that 227(c) doesn’t apply to cell telephones in any respect is solely a no go—until you are taking the FCC’s rulings on the topic head on.
The Cunningham choice affords no evaluation of the relevant FCC rulings or the handfuls and dozens of instances making use of 227(c) to cell telephones. So it’s a true “lure” case. There’s a motive that Cunningham didn’t even object to the Justice of the Peace choose’s ruling on this case—he needs you to find out about this and get confused. (I imply, that’s my assumption—clearly I can not but learn minds. However I get fairly shut these days.)
Don’t fall for it. If you’re advertising, keep away from calls to DNC numbers with out consent—even if you happen to suppose they’re cell telephones. In any other case anticipate a go to from a course of server representing the Cunninghams of the world.
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