Reported / Citable
Background
Brady Bennett alleged that Allstate Insurance Company’s agents repeatedly made telemarketing calls to his cellular telephone after he placed the number on the National Do Not Call Registry. He asserted claims under the Telephone Consumer Protection Act and its implementing do-not-call regulation.
Allstate moved to dismiss under Rule 12(b)(6), contending that the regulation protects only “residential telephone subscriber[s]” and that Bennett’s allegations identified only a cellular number. Bennett’s amended complaint did not allege that he used the cell phone for residential purposes, but his response identified additional facts he said he could plead about its personal, family, and household use.
The Court’s Holding
Magistrate Judge Mark Lane recommended that the district judge deny Allstate’s motion to dismiss and permit Bennett to amend. The recommendation concluded that a cellular number may qualify as a residential telephone line for purposes of the TCPA’s do-not-call protections when the plaintiff pleads that it is used for residential purposes.
The magistrate judge acknowledged a district-court split and the absence of controlling Fifth Circuit authority. But relying on FCC guidance and decisions within the circuit, the recommendation rejected a categorical rule excluding cell phones and concluded Bennett should have an opportunity to allege facts showing his number was used as a residential line.
Key Takeaways
- This is a report and recommendation, not a final ruling by the district judge.
- A cellular phone can potentially be treated as a residential telephone under the TCPA’s do-not-call provisions.
- A plaintiff must plead facts showing the cellular number was used for residential purposes; alleging only that it was a cell phone is insufficient.
Why It Matters
The recommendation preserves TCPA do-not-call claims involving cellular numbers when plaintiffs can factually connect the number to personal or household use. It also underscores that the issue remains unsettled in the Fifth Circuit.
For telemarketers and litigants, the decision highlights the importance of the number’s actual use, rather than its cellular status alone, at the pleading stage.