{"id":3247,"date":"2026-09-21T13:00:28","date_gmt":"2026-09-21T17:00:28","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=3247"},"modified":"2026-09-21T13:00:29","modified_gmt":"2026-09-21T17:00:29","slug":"florida-federal-court-holds-that-the-tcpas-do-not-call-provisions-do-not-apply-to-cell-phone-users","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2026\/09\/21\/florida-federal-court-holds-that-the-tcpas-do-not-call-provisions-do-not-apply-to-cell-phone-users\/","title":{"rendered":"Florida Federal Court Holds That The TCPA’s Do-Not-Call Provisions Do Not Apply To Cell Phone Users"},"content":{"rendered":"
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By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways<\/em><\/strong>: On September 11, 2026, in Anthony, et al. v. Brian Marketing Group, No. 24-CV-80800, 2026 WL 2685650 (S.D. Fla. Sept. 11, 2026), Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida denied<\/a> a plaintiff’s motion for default judgment on a Telephone Consumer Protection Act (\u201cTCPA\u201d) class action claim and held that cell phone users are not \u201cresidential telephone subscribers\u201d entitled to sue under the TCPA’s do-not-call provisions. The decision is premised on the conclusion that a prior Federal Communications Commission’s (\u201cFCC\u201d) order was outside the scope of the agency\u2019s statutory authority under 47 U.S.C. \u00a7 227(c).\u00a0 If this decision is widely adopted, it has the potential to upend TCPA litigation nationwide.<\/em><\/p>\n\n\n\n

Case Background<\/strong><\/p>\n\n\n\n

In June 2024, Plaintiff Michael Anthony (\u201cPlaintiff\u201d or \u201cAnthony\u201d) filed a putative class action against Brian Marketing Group (\u201cBMG\u201d) in the U.S. District Court for the Southern District of Florida for alleged violations of the TCPA and its implementing regulations.  He claimed that he received five unsolicited text messages to his personal cellphone over a twelve-month span even though he registered his cell phone number on the national do-not-call registry.  The text messages were identical and stated:<\/p>\n\n\n\n

\u201cOur records show that you or a loved one reached out for drug or alcohol treatment.  We have immediate availability!\u201d<\/p>\n\n\n\n

Because Anthony had never used drugs or alcohol, or never heard of BMG, he claims these text messages were unsolicited and violated the TCPA.  To that end, Anthony brought a single claim under \u00a7 227(c)(5) of the TCPA and its implementing regulations\u2019 prohibition on unlawful communications to individuals who registered their phone numbers on the national do-not-call registry.  47 C.F.R. \u00a7 64.1200(c).<\/p>\n\n\n\n

In September 2025, following proper service, the Clerk of Court entered default against BMG for failing to appear or respond.  As a result, Anthony filed a motion for default judgment seeking declaratory relief and $2,500 in statutory damages.<\/p>\n\n\n\n

The Court’s Decision<\/strong><\/p>\n\n\n\n

In a thorough 25-page opinion, Judge Cannon walked through the text, structure, and history of the TCPA to conclude that the FCC\u2019s Report and Order, In Re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991 (the \u201c2003 Order\u201d) exceeded the agency\u2019s statutory authority.  The FCC could not lawfully include cell phone users within the definition of the term \u201cresidential telephone subscriber.\u201d  As a result, Anthony could not state a claim under \u00a7 227(c)(5) of the TCPA.<\/p>\n\n\n\n

\u201cThe TCPA consists of two parts: \u00a7 227(b) imposes \u2018restrictions on [the] use of automated telephone equipment,\u2019 and \u00a7 227(c) protects \u2018subscriber privacy rights\u2019 and is colloquially known as the \u2018do-not-call provision.\u2019\u201d  Anthony<\/em>, 2026 WL 2685650,at *2 (quotations omitted).  The authority to promulgate the regulations to enforce the do-not-call provision come from an express delegation from the U.S. Congress and were designed \u201cto protect residential telephone subscribers\u2019 privacy rights [and] to avoid receiving telephone solicitations to which they object.\u201d  47 U.S.C. \u00a7 227(c)(1).<\/p>\n\n\n\n

Although Congress did not define the term \u201cresidential telephone subscriber,\u201d the FCC\u2019s implementing regulations \u2013 which created the national do-not-call registry adopted that language \u2013 when defining the individuals who have a private right of action under the statute.  47 C.F.R. \u00a7 64.1200(c)(2) (\u201cNo person or entity shall initiate any telephone solicitation to . . . [a] residential telephone subscriber<\/u><\/em> who has registered his or her telephone number on the national do-not-call registry of persons\u201d) (emphasis added); see also <\/em>47 C.F.R. \u00a7 64.1200(c)(1) (\u201cNo person or entity shall initiate any telephone solicitation to . . . [a]ny residential telephone subscriber<\/u><\/em> before the hour of 8 a.m. or after 9 p.m.\u201d) (emphasis added). From 1991 (when the TCPA was passed) to 2003 (when the 2003 Order was issued), there was no indication that the term residential telephone subscriber included calls to cell phones.<\/p>\n\n\n\n

But, in 2023, the FCC issued the 2003 Order which purported to extend the national do-not-call registry\u2019s protections to cell phone users because it was \u201cmore consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections.\u201d  Anthony<\/em>, 2026 WL 2685650,at *4 (quotations omitted).  Judge Cannon, however, concluded that the FCC lacked the authority to decide this issue in the 2003 Order and therefore Anthony failed to state a claim as a matter of law.  Judge Cannon\u2019s analysis followed four primary steps.<\/p>\n\n\n\n

First<\/em><\/strong>, Judge Cannon examined the plain meaning of “residential telephone subscriber” as used in \u00a7 227(c).\u00a0 Because the TCPA does not define the term, Judge Cannon looked to the dictionary definitions in existence at the time of enactment.\u00a0 \u201cAt the time the TCPA was enacted in 1991, dictionaries defined \u2018residential\u2019 as 1) \u2018of or connected with residence,\u2019 2) \u2018of, characterized by, or suitable for, residences or homes,\u2019 and 3) \u2018chiefly for residents rather than transients.\u2019\u201d Id. <\/em>at *7 (quotations omitted).\u00a0 She, therefore, reasoned that the term \u201cresidential telephone subscriber\u201d meant \u201cat the very least . . . a person who pays intermittently to receive telephone services that are connected to his or her home.\u201c\u00a0 Id.\u00a0 <\/em>Cell phones, however, were not connected to an individual\u2019s residence in 1991 and therefore would not have been captured by the scope of that term at the time.<\/p>\n\n\n\n

Second<\/em><\/strong>, Judge Cannon explained that the structure of the TCPA confirmed this interpretation as well.  In \u00a7 227(b), Congress demonstrated its ability to extend protections to \u201ccellular telephone service\u201d subscribers.  47 U.S.C. \u00a7 227(b)(1)(A)(iii).  It also included a separate section prohibiting the use of the above-mentioned regulated technologies to residential telephone subscribers.  47 U.S.C. \u00a7 227(b)(1)(B).  Other sections of the TCPA confirmed that interpretation.  See Anthony<\/em>, 2026 WL 2685650, at *9-10.  If the term \u201cresidential\u201d was synonymous with \u201ccellular,\u201d then Judge Cannon reasoned that \u00a7 227(b)(1)(B) would violate the cannon against surplusage because Congress would have regulated the same conduct twice.  \u201cIn sum, it is clear that Congress knew how to differentiate between cellular and residential when it wished to.\u201d  Id. <\/em>at *10.<\/p>\n\n\n\n

Third<\/em><\/strong>, Judge Cannon reasoned that the history of the statute confirmed this interpretation.  \u201cFrom the date of enactment of the TCPA through 2003,\u201d no one thought that cell phone numbers were considered residential telephone lines.  Anthony<\/em>, 2026 WL 2685650, at *9-10.  Indeed, the FCC even sought additional authority from Congress in order to promulgate such rules prior to 2003.  \u201cNevertheless, in 2003, and without the previously contemplated additional authority from Congress, the FCC promulgated new implementing regulations . . . to bring wireless subscribers within the orbit of residential subscribers.\u201d  Id. <\/em>at *11.   In short, \u201c[a]gencies may play the sorcerer’s apprentice but not the sorcerer himself\u201d \u2013 and in the absence of an express delegation from Congress to allow the FCC to promulgate rules to protect cell phone users\u2013 the extension of \u00a7 227(c) to cell phones was improper.  Id. <\/em>at *11 (quoting Facebook, Inc. v. Duguid<\/em>, 592 U.S. 395, 409 (2021)). <\/p>\n\n\n\n

Finally<\/em><\/strong>, Judge Cannon opined on the ongoing circuit split related to whether text messages constitute calls and determined that \u201cthe private right of action in \u00a7 227(c)(5) . . . does not [authorize] suits by cell phone users based on unwanted text<\/em> messages (rather than calls)\u201d and noted that this authority was an additional basis to enter judgment for BMG.  Anthony<\/em>, 2026 WL 2685650, at *12.<\/p>\n\n\n\n

Implications For Companies<\/strong><\/p>\n\n\n\n

If the reasoning of Anthony<\/em> is widely adopted, this decision has the potential to eviscerate TCPA litigation for companies across the nation.  Indeed, if the call in question is made to a cell phone, this decision essentially holds that there is no cause of action under \u00a7 227(c)(5) generally and specifically there is no protections afforded to such users under 47 C.F.R. \u00a7 64.1200(c)(1), 47 C.F.R. \u00a7 64.1200(c)(2), and 47 C.F.R. \u00a7 64.1200(d).  It also represents yet another decision to hold that text messages are not calls within the meaning of \u00a7 227(c)(5).<\/p>\n\n\n\n

That said, one of the more ironic elements of this decision is that it does not categorically foreclose 47 C.F.R. \u00a7 64.1601(e) claims \u2013 for failure to provide proper caller identification information \u2013 which a minority of courts have recently shoehorned into \u00a7 227(c)(5)\u2019s private right of action.  Despite the numerous other problems with such claims, \u00a7 64.1601(e) claims do not purport to hinge on an individual\u2019s residential telephone subscriber status.  This decision also does not eliminate TCPA liability under \u00a7 227(b)(3) for making calls using regulated technology but it would carve off a substantial chunk of TCPA liability if widely adopted.<\/p>\n\n\n\n

While this decision is undoubtedly a positive development for corporate counsel, we are not yet at the stage where companies can take such liability off the table.  This decision represents one decision, from one federal judge, and is certainly the minority view.  Nonetheless, companies should continue to preserve this argument by raising it as the law continues to develop and monitor this blog to stay on top of this new potential trend in TCPA law.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo Duane Morris Takeaways: On September 11, 2026, in Anthony, et al. v. Brian Marketing Group, No. 24-CV-80800, 2026 WL 2685650 (S.D. Fla. Sept. 11, 2026), Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida denied a plaintiff’s … <\/p>\n

Continue reading “Florida Federal Court Holds That The TCPA’s Do-Not-Call Provisions Do Not Apply To Cell Phone Users”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[89],"tags":[],"ppma_author":[7,9,127],"class_list":["post-3247","post","type-post","status-publish","format-standard","hentry","category-tcpa-class-action-litigation"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","author_category":"","last_name":"Riley","first_name":"Jennifer A.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/jenniferriley.html","description":"Read Jennifer's bio.<\/a>"},{"term_id":127,"user_id":692,"is_guest":0,"slug":"rgarippo","display_name":"Ryan Garippo","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2024\/09\/garipporyan-100x100.jpg","author_category":"","last_name":"Garippo","first_name":"Ryan","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/ryangarippo.html","description":"Read Ryan's Bio<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=3247"}],"version-history":[{"count":1,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3247\/revisions"}],"predecessor-version":[{"id":3250,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3247\/revisions\/3250"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=3247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=3247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=3247"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=3247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}