Guys like Craig Cunningham jump for joy every time a case like Cunningham v. Britereal Mgmt., Civil No. 4:20-cv-144-SDJ-KPJ, 2020 U.S. Dist. LEXIS 23613 (E.D. Tex. November 20, 2020), adopted, 2020 U.S. Dist. LEXIS 235956 (Dec. 16, 2020) is handed down. Yes he beat an errant Stoops argument lobbed at the pleadings stage (it never works folks), but more importantly—he lost his 227(c) claim with the Court finding that DNC claims do not apply to calls to residential cell phones.

So why would Cunningham be happy that he lost that argument?

Because this one little case might embolden hundreds (thousands?) of businesses to start cold calling cell phones thinking that the TCPA’s restrictions forbidding calls to “residential” numbers listed on the DNC does not apply. And that means a ton more money for serial plaintiffs like Mr. Cunningham.

Why?

Despite the seemingly clear language of the statute the FCC has issued a ruling clearly including cell phones used for residential purposes within the scope of the TCPA’s DNC prohibitions. Assuming that FCC ruling is binding—which is suddenly a questionable proposition—many dozens of cases have held that calls to residential cell phones that are on the DNC are actionable in TCPA claims under 227(c). Indeed, the same day Cunningham was adopted, the D. N.M. became about the 100^th case to reach that conclusion. See monster string cite at Mestas v. Chw Group, No. 19-CV-792 MV, 2020 U.S. Dist. LEXIS 236357 (D. N.M. December 16, 2020).

The real issue in these cases is whether the phone was used for business or residential purposes—which is usually an issue for the jury and should prevent certification in most cases. But the argument that 227(c) doesn’t apply to cell phones at all is simply a no go—unless you take the FCC’s rulings on the subject head on.

The Cunningham decision affords no analysis of the applicable FCC rulings or the dozens and dozens of cases applying 227(c) to cell phones. So it is a true “trap” case. There is a reason that Cunningham didn’t even object to the magistrate judge’s ruling in this case—he wants you to know about this and get confused. (I mean, that’s my assumption—obviously I cannot yet read minds. But I am getting pretty close lately.)

Don’t fall for it. If you are marketing, avoid calls to DNC numbers without consent—even if you think they are cell phones. Otherwise expect a visit from a process server representing the Cunninghams of the world.