In Dudley v. Solar, No. 21-659, 2021 U.S. Dist. LEXIS 135609 (E.D. Pa. July 21, 2021), Judge Pandora held that DNC claims exist for calls placed to cellular telephones.
Vision Solar argues that Plaintiffs have no cognizable private right of action under § 227(c) of the TCPA because they fail to allege facts that give rise to a plausible inference that their cell phone numbers are residential. Vision Solar concedes that a cell phone number “can qualify as residential under § 227(c),” but it suggests that a plaintiff must allege specific facts, such as that the phone is his only phone and the only operative phone in his residence, in order to plausibly allege that the cell phone qualifies as a residential phone under the statute. (Def.’s Mem. at 10 (citing Cunningham v. Foresters Fin. Servs., Inc., 300 F. Supp 3d 1004, 1018 (N.D. Ind. 2018)).) The consensus in this Circuit is that Do Not Call claims may apply to cell phones. See Valdes v. Century 21 Real Est., LLC, Civ. A. No. 2:19-05411, 2019 WL 5388162, at *3 (D.N.J. Oct. 22, 2019) (“[I]t is more consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections.” (citing In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014 at ¶¶ 33-36 (F.C.C. 2003)) (additional citations omitted)); see also Cunningham v. Cap. Advance Sols., LLC, Civ. A. No. 17-13050, 2018 WL 6061405, at *4 (D.N.J. Nov. 20, 2018) (“Here, at this juncture of the litigation, Plaintiff has sufficiently pled that his cellular phone is used for residential purposes.”); Shelton v. Fast Advance Funding, LLC, 378 F. Supp. 3d 356, 360, 363 (E.D. Pa. 2019) (concluding that plaintiff who received calls to his cell phone number registered in the Do Not Call Registry was entitled to relief under the TCPA), aff’d, 805 F. App’x 156 (3d Cir. 2020). A plaintiff may provide specific facts to support his allegation that his cell phone number is residential under the TCPA. See Cap. Advance Sols., 2018 WL 6061405, at *4-5 (concluding that plaintiff’s allegations that, inter alia, he used his cell phone for “personal, family, and household use,” had no landline, and did not use the phone primarily for a business purpose, were sufficient to plausibly allege that the cell phone number was residential under the TCPA). However, it is not required that a plaintiff provide extensive detail to state a plausible claim as to the residential character of his cell phone. See Valdes, 2019 WL 5388162, at *3 (finding that plaintiff plausibly alleged that his cell phone was residential under the TCPA where he did not explicitly allege that the number was “residential” and alleged only that the number “was not associated with business”). Here, the Complaint explicitly alleges that Plaintiffs’ cell phone numbers are used “for residential purposes.” (Compl. ¶ 15.) While the Complaint does not allege additional facts to elaborate on the residential nature of Plaintiffs’ cell phones, we conclude that the explicit allegation that the cell phone numbers were used “for residential purposes” is sufficient to plausibly allege that they were, in fact, used for such purposes and that additional allegations of fact are simply not necessary. See Valdes, 2019 WL 5388162, at *3. We therefore reject Vision Solar’s argument that Count II should be dismissed because the allegations do not support a reasonable inference that the offending calls were placed to residential phone numbers.