Applying the Telephone Consumer Protection Act to Shared Phones

Applying the Telephone Consumer Protection Act to Shared Phones

Legal Sidebari

Applying the Telephone Consumer Protection
Act to Shared Phones
August 29, 2023
The Telephone Consumer Protection Act (TCPA) is one of the primary federal statutes that regulates
robocalls made to residential and wireless phones. The Act is enforced by the Federal Communications
Commission (FCC) but also includes a private right of action, under which individuals may sue
telemarketers for certain violations. On June 30, 2023, the U.S. Court of Appeals for the Ninth Circuit
decided Hall v. Smosh Dot Com, Inc., a case that addresses which individuals may sue when the person
who subscribes to the phone at issue is not the phone’s primary user.
The plaintiff in Hall is a mother who purchased a cell phone, placed the phone’s number on the national
do-not-call registry, allowed her thirteen-year-old son to use the phone, and then filed a lawsuit alleging
that a business sent unsolicited text messages to the phone. The Ninth Circuit held that the mother—as the
phone’s owner and subscriber—alleged a concrete injury from receipt of the unwanted messages and
therefore had standing to sue. The court made clear, however, that deciding the standing question did not
resolve the merits of the TCPA claim. That merits analysis could, according to the court, raise questions
about the scope of liability under the TCPA’s private right of action. This Legal Sidebar summarizes some
of those questions, which may be of interest to Congress.
The TCPA and the National Do-Not-Call Registry
Section 227(c) of the TCPA directs the FCC to prescribe rules that “protect residential telephone
subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.” The FCC’s
implementing regulations allow a subscriber to register his or her telephone number on the national do-
not-call registry. If an individual registers a number on the national do-not-call registry but then receives
multiple unsolicited telephone calls from the same entity during a twelve-month period, Section 227(c)(5)
of the TCPA provides a right to sue. The FCC has construed the term “calls” for these purposes to
encompass “both voice calls and text calls to wireless numbers.” In Hall, the plaintiff brought a claim
under Section 227(c), alleging that the text messages described in her complaint violated the TCPA and its
implementing regulations.
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The Issue Decided in Hall
The U.S. District Court for the Eastern District of California dismissed Hall for lack of Article III
standing. The Supreme Court has held that Article III of the Constitution limits “the federal judicial power
to the resolution of ‘Cases’ and ‘Controversies.’” Plaintiffs in federal courts must therefore “demonstrate
their personal stake” in a case to establish standing to sue. The demonstration requires showing (1) an
actual or imminent concrete and particularized injury (2) that was likely caused by the defendant and
(3) may likely be redressed through judicial relief.
The district court in Hall reasoned that the plaintiff lacked standing because she did not claim in her
complaint that she was the cell phone’s primary user or the actual recipient of unsolicited text messages.
Allegations that the plaintiff was “merely . . . the subscriber/owner of the phone” did not, according to the
district court, satisfy the injury, causation, and redressibility standard that governs standing analysis.
The plaintiff appealed the district court’s judgment, and the Ninth Circuit reversed. The Ninth Circuit had
held in an earlier case that receipt of unsolicited text messages in violation of the TCPA is a concrete
injury sufficient to establish standing. In Hall, the court explained that the “National Do-Not-Call
Registry is directed at preserving the privacy of the residential subscriber,” and the plaintiff—the phone’s
subscriber—alleged that she had placed the number at issue on the registry. Regardless of whether the
plaintiff or her son was the phone’s primary user, the court concluded, subscribers can allege the type of
injury that confers standing, and the plaintiff had done so.
Issues Left Undecided in Hall
The Ninth Circuit made clear it was holding only that the plaintiff had standing to pursue her TCPA claim;
it took no position on the merits of that claim. Instead, throughout the opinion, the court identified a
number of questions about TCPA liability that could be raised if the case proceeds. The court noted that a
caller may be able to avoid TCPA liability by “show[ing] that it obtained the consent of a phone’s
‘consumer,’ even if the phone’s consumer is someone other than the phone’s subscriber.” Because it was
“remand[ing] all merits questions to the district court,” the court declined to decide “who qualifies as a
consumer or relevant third-party, how consent is demonstrated, whether a minor can give such consent,
and, if so, what law a court should look to in evaluating consent.” The court similarly did not decide
“whether Hall qualifies as a ‘called party,’” a term the FCC has defined to mean the current subscriber or
a “non-subscriber customary user of a telephone number included in a family or business calling plan.”
The “called party” designation could affect liability in some cases because the TCPA excepts calls “made
with the prior express consent of the called party” from certain prohibitions.
These issues, the court reasoned, are “relevant only to the scope of the cause of action created by the
TCPA, not to the question of Article III standing.” The court “recognize[d]” that this reasoning—which
“allow[s] lawsuits to proceed [even] when the ultimate phone user consent[ed]” to the communications at
issue—“may cause telemarketers difficulties.” According to the court, “it is up to Congress or
implementing agencies to address any such supposed difficulties.”
Considerations for Congress
The Ninth Circuit’s primary holding in Hall was based on Article III standing, a constitutional doctrine
that cannot be abrogated by Congress. The TCPA’s private right of action, however, is governed by statute
and regulation and is subject to congressional amendment. Several Members of Congress have introduced
bills in recent years that would modify aspects of TCPA liability. For example, versions of the Deter
Obnoxious, Nefarious, and Outrageous Telephone Calls Act or the DO NOT Call Act—which would

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increase the severity of some penalties imposed by the TCPA—have been introduced in the 115th
Congress (S. 3149), 116th Congress (S. 1826/H.R. 3810), 117th Congress (S. 1913/H.R. 4919), and 118th
Congress (H.R. 800). The 116th Congress also saw the introduction of the Protecting American
Consumers from Robocalls Act (S. 1241/H.R. 3605), a bill that would have amended the TCPA to remove
the requirement that a plaintiff receive “more than one telephone call within any 12-month period” before
bringing suit. Hall identifies ways in which the scope of the TCPA’s private right of action is developing
through litigation: courts are grappling with questions concerning which individuals may sue and which
individuals must consent to robocalls when a phone’s subscriber and user (alternatively, the “consumer”
or “called party”) are different individuals. The terms “subscriber,” “user,” “consumer,” and “called
party” all appear in the TCPA, and Congress could weigh in on their meaning.

Author Information

Peter J. Benson

Legislative Attorney

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