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Ninth Circuit Affirms That B2B Texts Are Subject to the TCPA

A businesswoman is talking on two phones—one black, one red—at the same time

Posted by Chris Alarie on Wed, 10/19/2022 - 16:28

Last week the Ninth Circuit issued a ruling in a Telephone Consumer Protection Act (TCPA) class action reversing a lower court decision on the application of the TCPA’s regulations to business-to-business (B2B) text messages.

In Chennette v. Porch.com, the plaintiffs accused the defendant of sending more than 7,500 B2B text messages offering client leads to 51 home improvement contractors. 15 of those 51 had registered their phone numbers on the National Do Not Call (DNC) Registry, forming the basis for the TCPA violation claims. The defendant moved for dismissal with the argument that the TCPA only protects individuals, not entities. Somewhat surprisingly, the Idaho District Court agreed with this argument and ruled in favor of the defendant.

The Ninth Circuit overturned this ruling, noting that the relevant section of the United States Code allows a “person or entity” to recover damages under the statute. In their decision, the court wrote, “Using a plain language analysis and reading the statutory language in context, we conclude that under the most natural reading of the term, ‘entity’ includes a business. Section 227(b) thus covers calls to the cell phones of businesses as well as individuals.”

The defendants countered this by trying to claim that the 15 phone numbers were not eligible for the DNC list protections due to their dual use as business and personal phones. The court did not find this persuasive, pointing to the lack of clear FCC guidance or court precedents that dual purpose phones should not be regulated as residential phone numbers.