Hot off the press is a case decision to put on your radar! In Lirones v. Leaf Home Water Sols., L.L.C., No. 5:23-cv-02087, 2024 U.S. Dist. LEXIS 165900 (N.D. Ohio Sept. 16, 2024), the United States District Court for the Northern District of Ohio addressed a critical question under the TCPA: Can cellular telephone users be considered “residential telephone subscribers” for purposes of the Do Not Call Registry protections under 47 U.S.C. § 227(c)?

Here, Plaintiff alleged that Defendant Leaf Home Water Solutions, LLC made unsolicited calls to her cellular telephone number, which was registered on the National Do Not Call Registry. The Plaintiff claimed to use her cell phone “for personal and household use only as one would use a residential landline.” The Defendant moved to dismiss, arguing that § 227(c) of the TCPA and its implementing regulations apply solely to residential landlines, not cellular telephones. The Defendant also requested, in the alternative, certification for interlocutory appeal if the motion to dismiss was denied. But the court wasn’t buying it.

The court’s analysis centered on interpreting “residential telephone subscriber” in § 227(c). Judge Brennan rejected Defendant’s argument that the term exclusively refers to landline users, highlighting three key points:

1. The TCPA’s Distinction in Language: While § 227(b) distinguishes between “cellular telephone service” and “residential telephone line,” § 227(c) uses the broader term “residential telephone subscriber.”
2. Congress’s Intent in Choosing Terms: The omission of “line” in § 227(c) suggests Congress intended to focus on the subscriber’s usage rather than the specific technology.
3. Interpreting ‘Residential Subscriber’: The court interpreted “residential subscriber” as one who maintains a phone for residential purposes, i.e., for personal activities associated with private, domestic life.

The court reinforced its position by citing several key cases and regulatory decisions:

1. Chennette v. Porch.Com, Inc., 50 F.4th 1217 (9th Cir. 2022): The Ninth Circuit held that cell phones used for personal and business purposes were presumptively residential for § 227(c) purposes.
2. Cacho v. McCarthy & Kelly L.L.P., No. 23-cv-11157 (LJL), 2024 WL 3293628 (S.D.N.Y. July 3, 2024): Post-Loper, this court concluded that cellular telephone users can be “residential telephone subscribers” under the TCPA.
3. Lyman v. Quinstreet, Inc., No. 23-cv-05056-PCP, 2024 WL 3406992 (N.D. Cal. July 12, 2024): Another post-Loper decision affirming that the TCPA’s text supports including some cellular phone subscribers within “residential telephone subscribers.”
4. FCC’s 2003 Order: While no longer binding post-Loper, the court found persuasive the FCC’s presumption that wireless subscribers who register on the Do Not Call list are “residential subscribers.”

But let’s back up for a moment… The Supreme Court’s decision in Loper v. Raimondo, 144 S. Ct. 2244 (2024), overturned Chevron deference—a monumental shift. If you are slacking, you must read the one and only Czar’s blog about it: here. However, Judge Brennan’s analysis in Lirones demonstrates a nuanced approach to agency interpretations post-Loper.

Specifically, the court noted that under Loper, agency interpretations may still be “especially informative” when based on factual premises within the agency’s expertise. Judge Brennan directly quoted from Lyman v. QuinStreet, Inc., which in turn cited Loper:

“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).

However, it is essential to note that while the court found the FCC’s interpretation persuasive, it did not rely solely on that interpretation. The court conducted an independent statutory analysis and concluded that the plain text of the TCPA supports extending its protections to cellular phone users when used for residential purposes, even without deference to the FCC.

This approach reflects a careful balance in the post-Chevron landscape. While courts are no longer bound by agency interpretations, they can still find them persuasive, particularly when the agency has relevant expertise. In Lirones, the court found the FCC’s interpretation of “residential subscriber” persuasive on these grounds.

So, what’s the deal? This reasoning provides a framework for how courts might consider agency interpretations in the wake of Loper. It suggests that while agencies have lost their automatic deference, their interpretations can still carry significant weight when rooted in their areas of expertise.

But how is this playing out elsewhere?

For example, the Eleventh Circuit is taking a different approach. Check out Kayla’s blog: here. Kayla dives deep into a case in which the Northern District of Georgia is pushing back against the Eleventh Circuit’s stance that district courts must treat FCC orders as binding under the Hobbs Act, arguing for more flexibility in interpreting the TCPA post-Loper. It’s super interesting.

Here, the court denied the defendant’s motion to dismiss, concluding that cellular telephone users can qualify as “residential telephone subscribers” under § 227(c) if they use their phones for personal, household purposes.

This decision has significant implications:

1. Expansion of TCPA Protections: It expands TCPA protections to many cell phone users, reflecting the modern reality of cellular phones as primary personal lines.
2. Post-Loper Framework: It provides a framework for considering agency interpretations in statutory analysis post-Loper.
3. Increased Liability Risks: It potentially increases liability risks for telemarketers and other entities engaged in phone-based marketing.

Overall, Lirones represents an important development in TCPA jurisprudence, adapting the statute’s protections to contemporary communication norms. As this interpretation gains traction across jurisdictions, it may significantly reshape compliance requirements and litigation strategies in TCPA cases.

Keep it legal, keep it smart, and stay ahead of the game.