Judge Kenneth D. Bell, in the Western District of North Carolina, clarified the application of the Telephone Consumer Protection Act (TCPA) to cell phone numbers listed on the National Do Not Call Registry. The court denied a motion to dismiss TCPA claims, allowing the plaintiff’s case to move forward toward trial.
The plaintiff allegedly received at least twelve unwanted calls to his cell phone, which he used exclusively for personal and residential purposes. Despite registering his number on the National Do Not Call Registry, the plaintiff continued to receive calls, some featuring prerecorded messages, from entities seeking to generate legal representation leads. The plaintiff asserted that he requested the calls stop and that his number be placed on a do-not-call list, but the calls persisted for several months.
Did Plaintiff invite the calls?
In Defendants’ view, Mr. Newman “invited” the calls that came after November 17, 2022, because he provided information to the callers as well as his VOIP number under the guise of seeking legal advice on behalf of his father (the “fictitious information”). Doc. No. 12 at 5. However, taking the facts in the Complaint as true at this early stage of the litigation, Mr. Newman alleged that he received unwanted calls on both November 8, 2022, and November 17, 2022. It is irrelevant (for purposes of the Motion to Dismiss) that during the November 17 call Mr. Newman provided fictitious information, which arguably invited Defendants to continue calling him, because he did so only after receiving the second unwanted call. Therefore, Mr. Newman has plausibly alleged that he received more than one unwanted and uninvited call within a twelve-month period to his Cell Number.
Can a cell phone be a residential telephone?
The court addressed the unsettled question of whether a cell phone can be considered a “residential telephone” for TCPA purposes. While acknowledging that courts have reached different conclusions, the court noted a recent trend in district court decisions within the Fourth Circuit to treat cell phones used for personal and residential purposes as protected under the TCPA. The court adopted this approach for purposes of the motion to dismiss.
Newman v. SGMS, Inc., No. 3:25-CV-00042-KDB-SCR, 2025 WL 2524131 (W.D.N.C. Sept. 2, 2025).
