District Court (Ohio) Lets DNC-TCPA Case Past Pleadings Stage on the Basis that Business Phone Might Have Been Used for Dual Purpose

Further, on the matter of telephone numbers used for both business and residential purposes, the FCC has “decline[d] to exempt from the do-not-call rules those calls made to ‘home-based businesses’ rather, we will review such calls as they are brought to our attention to determine whether or not the call was made to a residential subscriber.” Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 20 FCC Red. 3788, 3793 (2005). As such, courts have routinely looked at the facts and circumstances surrounding a particular case before deciding whether TCPA protection extended to a particular telephone number that was used for both business and residential purposes. See Baker v. Certified Payment Processing, L.P., No. 16-cv-3002, 2016 WL 3360464, at *3 (CD. Ill. June 16, 2016) (denying Defendant’s motion to dismiss notwithstanding the Plaintiffs admitted business use of the telephone number); Clauss v. Legend Sec., Inc., No. 4:13-cv-00381, 2014 WL 10007080, at *3 (S.D. Iowa Sept. 8, 2014) (denying a motion for summary judgment where the parties disputed the Plaintiff’s use of the telephone number at the time of the Defendant’s contact); Warnick v. Dish Network LLC, No. 12-cv-01952, 2014 WL 12537066, at *9 (D. Colo. Sept. 30, 2014) (rejecting the argument that the “TCPA is inapplicable to calls made to cellular telephones used for business purposes”); Bank v. Indep. Energy Grp. LLC, No. 12-cv-1369, 2014 WL 4954618, at *4 (E.D.N.Y Oct. 2, 2014) (“Bank I”) (denying Defendants’ 12(b)(6) motion without limited discovery to determine the Plaintiff’s telephone number use and resulting protection under the TCPA). To support its notion that business use of a telephone number registered on the NDNC per se voids its TCPA protections, Defendant relies on Bank v. Indep. Energy Grp. LLC, No. 12-cv-1369, 2015 WL 4488070 (E.D.N.Y. July 23, 2015), appeal docketed, No. 15-2391 (2d Cir. July 29, 2015) (“Bank II”). Defendant ignores that the court in Bank II did not reach its holding that TCPA protections did not extend to the particular telephone number at issue until after the close of discovery. See id. at *3 (granting Defendant’s Motion for Summary Judgment); see also Bank I, 2014 WL 4954618, at *4 (denying Defendants’ motion to dismiss).  As such, pursuant to FCC guidance and caselaw applying such guidance, the Court finds that dismissing this case pursuant to Rule 12(c) would not be proper. In viewing the Amended Complaint in the light most favorable to the Plaintiff, the Court finds there to be plausible TCPA violations to survive a motion for judgment on the pleadings.