Ninth Circuit: Phone Number Used Only for TCPA Litigation Not “Residential”

The U.S. Court of Appeals for the Ninth Circuit recently held in an unpublished decision that a plaintiff did not have a cause of action under the TCPA where the subject phone number was used by the plaintiff in twelve TCPA cases filed over a 12-month period, and was not the plaintiff’s regular telephone number.

The plaintiff sued a lead generation company and a mortgage lender for TCPA violations.  On March 2, 2021, the plaintiff had received a text message regarding mortgages to his 718 area code number.  The plaintiff had obtained the 718 number only for TCPA litigation, having used it to file twelve cases over a 12-month period.  The plaintiff had also maintained a separate number with a 972 area code for personal use.  The plaintiff alleged that he had registered the 718 number on the national do-not-call registry more than 31 days before the March 2nd text message, in addition to sending a do-not-call request to the lead generation company on March 7, 2021. 

On a motion to dismiss in the district court, the companies argued that the 718 number was not a residential number because the plaintiff had used it only for TCPA litigation, maintaining a different, personal number for personal use.  The district court agreed and dismissed the TCPA claims with prejudice, finding, in part, that the 718 number was not a residential phone number as a matter of law.

On appeal, the Ninth Circuit affirmed the district court’s dismissal.  Relying on its earlier precedent, the Ninth Circuit held that while a phone number on the national do-not-call registry is presumed to be a residential one, that presumption can be rebutted by factors that demonstrate that the subject phone number is not for residential use.  Such factors include, but are not limited to, if a plaintiff makes the number public or if the plaintiff uses the number for business or employment.