setting forth the standard of review for a motion to dismiss
How later courts described this case
- setting forth the standard of review for a motion to dismiss
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAURAL LIRONES, individually and on ) CASE NO. 5:23-cv-02087
behalf of all others similarly situated, )
)
Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN
)
v. )
) MEMORANDUM OPINION
LEAF HOME WATER SOLUTIONS, LLC, ) AND ORDER
)
Defendant. )
Before this Court is Defendant’s motion to dismiss or, in the alternative, to certify the
Court’s order for interlocutory appeal. (Doc. No. 12.) Plaintiff opposed the motion (Doc. Nos.
17, 23), and Defendant replied (Doc. Nos. 20, 22). For the reasons below, the motion is
DENIED.
I. BACKGROUND
A. Facts
Plaintiff Laural Lirones’s (“Plaintiff”) class action complaint seeks “to stop the
Defendant from violating [the] Telephone Consumer Protection Act (‘TCPA’) by placing
unsolicited calls to phone numbers that are registered on the National Do Not Call registry
(‘DNC’) and from continuing to call consumers who have asked for the calls to stop.” (Doc. No.
1 at 1.)1 Plaintiff alleges Leaf Home Water Solutions, LLC (“LHWS” or “Defendant”) “solicits
1 For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
business by placing telephone sales calls to consumers” and “places telemarketing calls to phone
numbers that are registered on the DNC, as per Plaintiff’s experience.” (Id. ¶¶ 14, 15.)
Plaintiff is the subscriber and sole user of a cellular telephone number ending with 8581.
(Id. ¶ 21.) Plaintiff registered her cellular telephone number on the DNC on July 19, 2023. (Id.
¶ 22.) The Complaint alleges that “Plaintiff Lirones uses her cell phone number for personal and
household use only as one would use a residential landline.” (Id. ¶ 23.) The Complaint details
several unwanted communications to Plaintiff’s cellular telephone number. (Id. at 7-9.) Plaintiff
asserts:
The unauthorized telephonic sales calls that Plaintiff received from Defendant,
as alleged herein, have harmed the Plaintiff in the form of annoyance, nuisance,
and invasion of privacy, and disturbed the use and enjoyment of her phone, in
addition to the wear and tear on the phone’s hardware (including the phone’s
battery) and the consumption of memory on the phone.
(Id. ¶ 33.)
Plaintiff brings this class action pursuant to Rule 23(b)(2) and 23(b)(3) and seeks
certification of the following Classes:
Do Not Call Registry Class: All persons in the United States who from four
years prior to the filing of this action through class certification (1) Defendant
LHWS called more than one time, (2) within any 12-month period, (3) where
the person’s residential telephone number had been listed on the National Do
Not Call Registry for at least thirty days, (4) for substantially the same reason
Defendant called Plaintiff.
Internal Do Not Call Class: All persons in the United States who from four
years prior to the filing of this action through class certification (1) Defendant
called their residential telephone line at least two times (2) including at least
once after the consumer had communicated their wish to not receive any further
calls from the Defendant (3) for substantially the same reason Defendant called
the Plaintiff.
(Id. ¶ 35.)
Plaintiff’s claims arise under § 227(c) of the TCPA and the regulations at 47 C.F.R.
§ 64.1200(c) and (d). (Id. at 12-15.)
B. Procedural Posture
On January 23, 2024, Defendant filed a Rule 12(b)(6) motion to dismiss asserting that
“Plaintiff has no claims as a matter of law because she solely alleges calls to a cellular telephone
number.” (Doc. No. 12 at 70.) Defendant contends that a cellular telephone user is not a
“residential telephone subscriber” under § 227(c). (Id. at 71.) In the alternative, if the motion to
dismiss is denied, Defendant “requests that this Court certify its order for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b) to enable the Sixth Circuit to determine whether a cell phone
can qualify as a residential number.” (Id. at 55.)
On January 30, 2024, Defendant moved to stay the case pending the Supreme Court’s
forthcoming decisions in Relentless, Inc. v. United States Dep’t of Com., 62 F.4th 621 (1st Cir.
2023), cert. granted, 144 S. Ct. 325 (2023) and Loper Bright Enterprises, Inc. v. Raimondo, 45
F.4th 359 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023). (Doc. No. 13.) Plaintiff
responded to the motion to dismiss and motion to stay (Doc. No. 17), and Defendant replied
(Doc. Nos. 19, 20).
On May 10, 2024, the Court granted Defendant’s motion and stayed the case until the
conclusion of the Supreme Court’s October 2024 term. On July 1, 2024, Defendant moved to lift
the stay following the Supreme Court’s June 28, 2024 decision in Loper Bright Enterprises, Inc.
v. Raimondo, 144 S. Ct. 2244 (2024) (“Loper”). (Doc. No. 21.) The Court lifted the stay on
July 2, 2024, and the parties submitted supplemental briefing addressing Loper. (Doc. Nos. 22,
23.) On August 9, 2024, Plaintiff filed notice of supplemental authority, Lyman v. QuinStreet,
Inc., No. 23-cv-05056-PCP, 2024 WL 3406992 (N.D. Cal. July 12, 2024), which was issued
after the supplemental briefing. (Doc. No. 24.)
II. LAW AND ANALYSIS
A. Standard of Review
When addressing a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must construe the complaint in the light most favorable to the plaintiff
and accept all well-pleaded material allegations in the complaint as true. United States ex rel.
Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th Cir. 2017) (setting forth the standard
of review for a motion to dismiss); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
sufficiency of the complaint is tested against the notice pleading requirement that a complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief[.]” Fed. R. Civ. P. 8(a)(2). Although this standard is a liberal one, a complaint must still
provide the defendant with “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,” to state a plausible
claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
Facial plausibility means that the complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). Such plausibility “is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). In such a case, the plaintiff has
not “nudged [his] claims across the line from conceivable to plausible, [and the] complaint must
be dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 680.
A complaint need not detail all the particulars of a plaintiff’s claim. However, “Rule
8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678-79. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly,
550 U.S. at 555).
B. The TCPA
In 1991, Congress enacted the Telephone Consumer Protection Act (“TCPA”) in part to
“protect residential telephone subscribers’ privacy rights to avoid receiving telephone
solicitations to which they object.” 47 U.S.C. § 227(c)(1); see also Mims v. Arrow Fin. Servs.,
LLC, 565 U.S. 368, 372 (2012) (“Congress reported many consumers are outraged over the
proliferation of intrusive, nuisance [telemarketing] calls to their homes.” (quotations and
alterations omitted)).
Section 227(b) of the TCPA renders it “unlawful for any person . . . to make any call . . .
using any automatic telephone dialing system [(‘ATDS’)] or an artificial or prerecorded voice,”
except in an emergency or with the recipient’s prior consent, to several enumerated categories of
phones. 47 U.S.C. § 227(b)(1)(A). For example, the prohibition on ATDSs or prerecorded calls
extends to “any emergency telephone line,” “the telephone line of any guest room or patient
room of a hospital,” and “any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier service. . . .” Id.
Section 227(b) further forbids “initiat[ing] any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message.” 47 U.S.C. § 227(b)(1)(B). The
statute also proscribes the use of “any telephone facsimile machine, computer, or other device to
send, to a telephone facsimile machine, an unsolicited advertisement,” except where inter alia
the sender and recipient have an “established business relationship.” 47 U.S.C. § 227(b)(1)(C).
Section 227(c) of the TCPA is addressed to telephone solicitations that intrude on the
privacy of the subscriber, regardless of whether they are transmitted by an ATDS or an artificial
or prerecorded voice. In Section 227(c), Congress authorized the Federal Communications
Commission (“FCC”) to promulgate regulations to achieve the TCPA’s goals. 47 U.S.
§ 227(c)(3). Rather than dictating the contents of the regulations—as Congress did in § 227(b)—
§ 227(c) simply “permit[s]” the FCC to “require the establishment and operation of a single
national database to compile a list of telephone numbers of residential subscribers who object to
receiving telephone solicitations” and prohibiting telephone solicitation to “any subscriber
included in such database.” 47 U.S.C. § 227(c)(3). Telephone solicitation is defined as “the
initiation of a telephone call or message for the purpose of encouraging the purchase or rental of,
or investment in, property, goods, or services, which is transmitted to any person. . . .” 47 U.S.C.
§ 227(a)(4). Section 227(c) also confers a private cause of action on a “person who has received
more than one telephone call within any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this subsection. . . .” 47 U.S.C. § 227(c)(5).
The FCC’s implementing regulations provide:
No person or entity shall initiate any telephone solicitation to: ... (2) A residential
telephone subscriber who has registered his or her telephone number on the
national do-not-call registry of persons who do not wish to receive telephone
solicitations that is maintained by the Federal Government. Such do-not-call
registrations must be honored indefinitely, or until the registration is cancelled
by the consumer or the telephone number is removed by the database
administrator.
47 C.F.R. § 64.1200(c). Additionally, the FCC’s regulations prohibit any “person or entity”
from “initiat[ing] . . . any call for telemarketing purposes to a residential telephone subscriber
unless such person or entity has instituted procedures for maintaining a list of persons who
request not to receive such calls made by or on behalf of that person or entity.” 47 C.F.R.
§ 64.1200(d). At minimum, those procedures must include the maintenance of “a written policy,
available upon demand, for maintaining a do-not-call list,” 47 C.F.R. § 64.1200(d)(1), and
trainings for telemarketers on “the existence and use of the do-not-call list,” 47 C.F.R.
§ 64.1200(d)(2).
Furthermore, 47 C.F.R. § 64.1200(e) provides:
The rules set forth in paragraph (c) and (d) of this section are applicable to any
person or entity making telephone solicitations or telemarketing calls to wireless
telephone numbers to the extent described in the Commission’s Report and
Order, CG Docket No. 02–278, FCC 03–153, “Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991.”
The 2003 TCPA Report and Order—incorporated into the regulations by § 64.1200(e)—creates a
presumption that a cellular telephone registered on the Do Not Call Registry is a residential
phone:
As a practical matter, since determining whether any particular wireless
subscriber is a “residential subscriber” may be more fact-intensive than making
the same determination for a wireline subscriber, we will presume wireless
subscribers who ask to be put on the national do-not-call list to be “residential
subscribers.” Such a presumption, however, may require a complaining wireless
subscriber to provide further proof of the validity of that presumption should we
need to take enforcement action.
In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014,
14039 (2003) (“2003 Order”).
C. The Parties’ Arguments
Defendant makes the following three arguments in support of its motion to dismiss: (1)
“[t]he plain language of 47 U.S.C. § 227(c)(1) and 47 C.F.R. §§ 64.1200(c)-(d) apply solely to
residential telephone subscribers. Because the [TCPA] distinguishes, in multiple provisions,
cellular from residential lines, it is clear that the term ‘residential telephone subscriber’ cannot
include cellular telephone lines”; (2) “the Court is not bound by the FCC’s language interpreting
the phrase ‘residential telephone subscriber’ found in” the 2003 Order; and (3) “[t]he phrase
‘residential telephone subscriber’ is unambiguous” and “is not entitled to Chevron deference.”
(Doc. No. 12 at 66, 71-85.) In the alternative, Defendant requests that if the Court denies its
motion to dismiss, the Court “should certify its Order pursuant to 28 U.S.C. § 1292(b).” (Id. at
66, 85-87.)
In response, Plaintiff argues her allegations that her phone number has been on the DNC
since July 19, 2023, and that she uses that number “for personal and household use only,” are
sufficient to state her TCPA claim. (Doc. No. 17 at 114.) Plaintiff asserts: (1) that Defendant’s
argument that a cellular telephone user cannot be a “residential telephone subscriber” is
inconsistent with the text of the TCPA and canons of statutory construction (id. at 116-18); (2)
that the Hobbs Act precludes the Court from invalidating the FCC’s 2003 Order (id. at 119-20);
and (3) that “courts have repeatedly recognized” that the DNC protections apply to cellular
telephones (id. at 120-26). Plaintiff also argues that Defendant has not met its burden to
demonstrate that interlocutory review is warranted. (Id. at 126-27.)
The parties submitted supplemental briefing following the Supreme Court’s decision in
Loper. (See Doc. Nos. 22-23.) Defendant argues that because “‘Chevron is overruled,’ [t]he
Court owes no deference to the FCC’s prior pronouncements that a cell phone may qualify as
‘residential’ under Section 227(c).” (Doc. No. 22 at 222.) (citing Loper, 144 S. Ct. at 2273).
Instead, “[t]he question at hand turns on the reading the court would have reached if no agency
were involved.” (Id. (citing Loper, 144 S. Ct. at 2266) (citations omitted).) Plaintiff argues the
Court can determine the DNC protections apply to cellular telephone “based exclusively on the
TCPA’s statutory text,” that “the only district court to decide this issue post Loper reached
exactly that conclusion,” and “the Hobbs Act ensures that final FCC Orders, like the 2003 Order
. . . remain valid and not subject to challenge in a district court regardless of the elimination of
Chevron deference.” (Doc. No. 23 at 226-27.)
D. Discussion
1. The TCPA’s DNC Protections Apply to Cellular Telephones
To state a claim under 47 U.S.C. § 227(c), a plaintiff must allege she: (A) is a residential
telephone subscriber; (B) registered that telephone number with the Do Not Call Registry; and
(C) nonetheless received an unsolicited call to that number initiated by a person or entity. 47
C.F.R. § 64.1200(c)(2). The key inquiry is whether a cellular telephone user can qualify as a
“residential telephone subscriber.”
Defendant argues § 227(c) and its regulations “apply exclusively to residential telephone
lines.” (Doc. No. 12 at 71.) According to Defendant, “[t]he TCPA distinguishes residential
from cellular telephones.” (Id. at 73.) Defendant points to the fact that “this Court similarly
acknowledged the distinction in denying a motion concerning this very issue.” (Id. (citing
Tsolumba v. SelectQuote Ins. Servs., No. 5:22-cv-00712, 2023 WL 6146644, at *4 (N.D. Ohio
Sept. 20, 2023).) Defendant contends “[t]his statutory distinction must be respected.” (Id. at
74.) Defendant also argues that this distinction drives the resolution of this case because each
word must have effect under the expressio unius canon of statutory construction. (Doc. No. 20 at
152-54.)
Defendant claims many district courts have dismissed § 227(c) claims brought by cellular
telephone users. (See Doc. No. 12 at 71-72.) However, the cases Defendant cites, particularly
those from the Middle District of Tennessee, are not persuasive. Most of the cases Defendant
cites involve the same serial plaintiff. (Id.) In the first instance, in Cunningham v. Rapid
Response Monitoring Servs., Inc., the court dismissed the § 227(c) claim because the plaintiff did
not plead that the cellular telephone number called was used for residential purposes. 251 F.
Supp. 3d 1187, 1201 (M.D.Tenn.2017) (“in some cases, an individual who relies on a cellular
phone may nevertheless fall within the definition of a ‘residential telephone subscriber”’ under
the Act . . . Cunningham, however, has pled no facts sufficient for this Court to draw that
conclusion here”) (citations omitted).2 The subsequent cases with the same plaintiff cite to that
decision.3
Plaintiff argues that Defendant’s reading of the term “residential” to exclude cellular
telephones used for personal, household purposes “is inconsistent with multiple canons of
construction.” (Doc. No. 17 at 116-17.) Plaintiff contends that Congress’s use of the term
“residential” refers to the type of user (i.e., personal or business), not “the type of technology that
2 In fact, Defendant even concedes that the court in Cunningham v. Rapid Response Monitoring
Servs., Inc. acknowledged “some courts have included cell phones where there was factual
support that the phone was used for residential purposes.” (Doc. No. 12 at 71 n.1.)
3 See Cunningham v. Britereal Mgmt., Inc., 4:20-cv-144, 2020 WL 7391693, at *4, 7 (E.D. Tex.
Nov. 20, 2020), R&R adopted, 2020 WL 7388415 (E.D. Tex. Dec. 16, 2020); Cunningham v.
Politi, 4:18-cv-00362, 2019 WL 2519702, at *4 (E.D. Tex. Apr. 26, 2019), R&R adopted, 2019
WL 2526536 (E.D. Tex. June 19, 2019); Cunningham v. Sunshine Consulting Grp., LLC,
No. 3:16-2921, 2018 WL 3496538, at *6 (M.D. Tenn. July 20, 2018), R & R adopted, 2018 WL
5728534 (M.D. Tenn. Aug. 7, 2018); Cunningham v. Spectrum Tax Relief, LLC, No. 3:16-2283,
2017 WL 3222559, at *3 (M.D. Tenn. July 7, 2017), R & R adopted, 2017 WL 3220411 (M.D.
Tenn. July 28, 2017).
the technology that the consumer chooses to use.” (Id. at 117-18.) Plaintiff further argues that
courts have repeatedly recognized that the TCPA’s DNC protections apply to cellular telephones.
(See id. at 120-22 (citing cases).)
Both district courts that have considered this issue post-Loper have reached the same
conclusion: cellular telephone users can be considered “residential telephone subscribers” under
§ 227(c). See Cacho v. McCarthy & Kelly LLP, No. 23-CV-11157 (LJL), 2024 WL 3293628, at
*9 (S.D.N.Y. July 3, 2024) (“The Court therefore rejects Defendant’s contention that Plaintiff
falls outside the TCPA’s protective ambit merely because he received the challenged calls on his
cellphone.”); Lyman v. QuinStreet, Inc., No. 23-CV-05056-PCP, 2024 WL 3406992, at *4 (N.D.
Cal. July 12, 2024) (“the statutory text does not support [Defendant’s] position, and instead is
best read to include at least some cellular phone subscribers within the category of ‘residential
telephone subscribers’”).
The TCPA’s distinction between residential lines and cellular telephones that this Court
recognized in Tsolumba is consistent with this reading of the statute. See Tsolumba, 2023 WL
6146644, at *5. Although Congress addressed both “cellular telephone service[s]” and
“residential telephone line[s]” in § 227(b), that section forbids the use of artificial and
prerecorded messages to enumerated categories of phone technologies. See Cacho, 2024 WL
3293628, at *6; Lyman, 2024 WL 3406992, at *3. On the other hand, § 227(c) provides
protections to a certain type of phone user, regardless of the technology.
Defendant’s expressio unius argument therefore amounts to a category mistake:
Cellular telephones . . . are a kind of telephonic communications technology. A
‘residential subscriber,’ by contrast, does not refer to the specific phone
technology, but to the type or identity of the subscriber to the technology. Thus,
a ‘residential subscriber’ and a cellular telephone are not members of the same
genus.
Cacho, 2024 WL 3293628, at *6-7. The inclusion of the term “cellular telephone” in § 227(b)
and its exclusion from § 227(c) does not indicate that Congress intentionally omitted cellular
telephones from § 227(c)’s protections; “Had Congress wished to limit section 227(c) to
specified telephone technologies rather than specified telephone subscribers, it would have
indicated somewhere in that section that the [Do Not Call] registry is limited to a ‘residential
telephone line,’ as Congress used that term in the preceding subsection.” Cacho, 2024 WL
3293628, at *7 (citations omitted).
Additionally, Congress uses the word “line” in § 227(b) in making it unlawful to initiate a
telephone call to a “residential telephone line” with an artificial or prerecorded voice. 47 U.S.C.
§ 227(b)(1)(B). In § 227(c), Congress directed the FCC to regulate with respect to the privacy
rights of “residential telephone subscribers.” 47 U.S.C. § 227(c)(1). If the term “residential”
referred to the telephone technology, then “Congress’s reference to a residential telephone ‘line’
[in § 227(b)] would be surplusage, as a residential telephone would necessarily be a landline
instead of a cellphone.” Cacho, 2024 WL 3293628, at *7. It follows that Congress’s omission
of the word “line” and use of the word “subscriber” in § 227(c) therefore refers to the type of
subscriber and the function for which the subscriber uses the phone rather than the type of
technology. Id. at *8. Furthermore, according to the TCPA’s plain language and dictionary
definitions of “residence” and “subscriber,” “a residential subscriber is one who maintains a
phone for residential purposes . . . i.e., for personal activities associated with his or her private,
domestic life.” Id. (citations and quotations omitted).
Defendant argues that while this Court relied on the 2003 Order in its previous decision
on this issue, the 2003 Order is no longer entitled to deference post-Loper. (See Doc. No. 22 at
222 (citing Tsolumba, 2023 WL 6146644, at *5).) But consideration of the 2003 Order is still
appropriate under Loper. In Loper, the Supreme Court held that “although an agency’s
interpretation of a statute cannot bind a court, it may be especially informative to the extent it
rests on factual premises within the agency’s expertise.” 144 S. Ct. at 2267 (citations and
quotations omitted). “[J]udges need only fulfill their obligations under the APA to
independently identify and respect such delegations of authority, police the outer statutory
boundaries of those delegations, and ensure that agencies exercise their discretion consistent with
the APA.” Id. at 2268.
Here, Congress expressly conferred discretionary authority on the FCC to flesh out the
TCPA. See 47 U.S.C. § 227(c). Lyman, 2024 WL 3406992, at *4. “Using its discretion within
the boundaries of its delegation,” the FCC has created a presumption that a cellular telephone
registered on the DNC is a residential phone. Lyman, 2024 WL 3406992, at *4; see also 2003
Order; 47 C.F.R. § 64.12000(e); “The FCC’s interpretation ‘rests on factual premises within the
agency’s expertise,’ thus giving its interpretation ‘particular power to persuade, if lacking power
to control.’” Lyman, 2024 WL 3406992, at *4 (quoting Loper, 144 S. Ct. at 2267). The Court
finds the FCC’s interpretation of “residential subscriber” persuasive.
Ultimately, as Defendant points out, “[t]he question at hand turns on the reading the court
would have reached if no agency were involved.” (Doc. No. 22 at 222 (citing Loper, 144 S. Ct.
at 2266) (citations and quotations omitted).) Here, based on the text of the statute and tools of
statutory interpretation, the Court would reach the same conclusion in the absence of any FCC
interpretation of the term “residential subscriber.” See Lyman, 2024 WL 3406992, at *4 (“In any
event, however, the Court would reach the same conclusion in the absence of any FCC
interpretation of the TCPA’s statutory text.”). Finally, because the Court concludes that
Plaintiff’s allegations satisfy both the plain text of the TCPA and the FCC’s regulations, the
Court need not determine whether the Hobbs Act constrains the Court’s review of the FCC’s
2003 Order. See Cacho, 2024 WL 3293628, at *9 n.8; Tsolumba, 2023 WL 6146644, at *5 n.3;
see also PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 588 U.S. 1 (2019). At this
stage, Plaintiff’s allegations are sufficient to establish that she is a residential telephone
subscriber under the TCPA.
2. Interlocutory Review Under 28 U.S.C. § 1292(b) Is Not Warranted
Pursuant to 28 U.S.C. § 1292(b), this Court has the discretion to “permit an appeal to be
taken from an order certified for interlocutory appeal if (1) the order involves a controlling
question of law, (2) a substantial ground for difference of opinion exists regarding the
correctness of the decision, and (3) an immediate appeal may materially advance the ultimate
termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
Certification under § 1292(b) should be granted “sparingly” and “only in exceptional cases.”
Kraus v. Board of Cnty. Rd. Comm’rs for Kent Cnty., 364 F.2d 919, 922 (6th Cir. 1966)).
Defendant argues “[w]hether 47 C.F.R. § 64.1200(c)-(d) applies to cell phones” is a
question of law because it is an issue of statutory interpretation and it is controlling because if
the Court finds that “the regulations do not apply to cell phones, Plaintiff has no claims.” (Doc.
No. 12 at 86 (citing In re Trump, 874 F.3d 948, 951 (6th Cir. 2017)).) Defendant also argues that
an immediate appeal would end the case if the Sixth Circuit found that 47 C.F.R. § 64.1200(c)-
(d) did not apply to cell cellular telephones. (Id. at 87.) While Defendant maintains the factors
weigh in favor of certification, the Court does not find Defendant has shown a substantial ground
for difference of opinion exists regarding the correctness of the decision.
A substantial ground for difference of opinion exists where “(1) the question is difficult,
novel and either a question on which there is little precedent or one whose correct resolution is
not substantially guided by previous decisions; (2) the question is difficult and of first
impression; (3) a difference of opinion exists within the controlling circuit; or (4) the circuits are
split on the question.” In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013).
This issue is not a novel question or an issue of first impression. Defendant notes it “is
aware that this Court has already reviewed this issue” but “respectfully disagrees.” (Doc. No. 12
at 85 (citing Tsolumba, 2023 WL 6146644, at *5).) However, Defendant’s disagreement with
the Court’s previous decision does not demonstrate a substantial ground for difference of
opinion. Defendant further asserts, “[c]ritically, the courts within this Circuit (and elsewhere)
are split.” (Id. at 87.) But as discussed above, the cases from the Middle District of Tennessee
that rely on the decision in Cunningham v. Rapid Response Monitoring Servs. and deal with the
same serial plaintiff are not persuasive—there, the court dismissed the § 227(c) claim because
the plaintiff did not plead that the cellular telephone number called was used for residential
purposes and acknowledged that in some cases, cellular telephone users may fall within the
definition of residential subscriber. 251 F. Supp. 3d 1187, 1201 (M.D. Tenn. 2017).
There is also no circuit split—the only circuit court to evaluate this issue held that
cellular telephones used for personal and business purposes were presumptively residential for
purposes of § 227(c). See Chennette v. Porch.com, Inc., 50 F.4th 1217, 1224-26 (9th Cir. 2022).
Defendant argues Chennette is not on point because the defendants in that case “conceded that
cell phones can be ‘residential’ for purposes of § 227(c)” and merely argued that the plaintiffs’
use of their cell cellular telephones for both personal and business purposes rendered them non-
residential. (See Doc. No. 20 at 159; 50 F.4th at 1223.) However, the Ninth Circuit’s holding
was premised on the conclusion that § 227(c) could encompass cellular telephones in some
circumstances. 50 F.4th at 1224-26; see also Lyman, 2024 WL 3406992, at *3. Additionally, as
noted above, the only two district courts to consider this issue post-Loper both concluded that
cellular telephone users can be considered “residential telephone subscribers” under § 227(c).
See Cacho, 2024 WL 3293628, at *9; Lyman, 2024 WL 3406992, at *4.
For these reasons, the Court finds that this case is not an exceptional case warranting
certification for interlocutory appeal under § 1292(b).
III. CONCLUSION
For the reasons above, Defendant’s motion to dismiss, or in the alternative, to certify for
interlocutory appeal (Doc. No. 12) is DENIED.
IT IS SO ORDERED.
Date: September 16, 2024 ___s_/_ B_r_i_d_g_e_t _M_._ B__re_n_n_a_n_____________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE