District Court (Kan.) Says Husband Has Standing Under TCPA as Customary User of Wife’s Cell Phone, But Did Not Qualify Husband as “Residential Subscriber” Under TCPA’s DNC Rules

In Lee v. Loandepot.com, LLC, 2016 WL 4382786, at *5 (D.Kan., 2016), Judge Melgren held that the Husband, as a regular user of the wife’s cell phone, had standing to sue under the TCPA.

Moving on to the legal issue at hand, the 2015 FCC Order defines the term “called party” as the “subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan.” The TCPA based this finding on the language of § 227(b), which states that the TCPA’s restriction applies to “any service for which the called party is charged for the call.”According to the FCC, the term “is best understood to mean the subscriber to whom the dialed wireless number is assigned because the subscriber is ‘charged for the call’ and, along with a non-subscriber customary user, is the person whose privacy is interrupted by unwanted calls.” In addition, the FCC specifically rejected any proposals to interpret the term “called party” to be the “intended recipient” or “intended called party.”  Based on the FCC’s ruling in the 2015 Order, this Court finds that Plaintiff has standing to bring his claims under the TCPA. Although Plaintiff is not the subscriber, he is the husband of the subscriber and the primary user of the wireless number ending in 2833. Therefore, the Court denies Defendant’s motion for summary judgment on this basis.

But, the Court said that standing did equate to meeting the elements of the statute .

To prevail under 47 C.F.R. § 64.1200(c)(2), Plaintiff must establish that his cellular number is used for residential purposes. The FCC addressed this issue in its 2003 Order regarding the statute. In that Order, the FCC stated that it would presume that wireless numbers registered on the national do-not-call registry were residential numbers. It also stated, however, that in the case of an enforcement action, the complainant had the burden to prove that the wireless number was used as a residential number.  In United States v. Dish Network, the court relied upon these statements by the FCC in holding that, to prevail under 47 C.F.R. § 64.1200(c)(2), the plaintiff must show that the calls were directed to a residential telephone subscriber.  In this case, Plaintiff has not come forward with any evidence showing how he used his cellular phone. The only evidence Plaintiff offers in his affidavit is that he is the husband or the subscriber, that he is the primary user of the phone, and that he pays the bill for the phone. Therefore, Plaintiff has failed to present sufficient facts showing a genuine issue for trial, and the Court grants summary judgment to Defendant on this claim.