Court Rules on Applicability of TCPA to Dual Purpose Telephone Number

With some exceptions, telephone calls between a telemarketer and a business are exempt from the Telemarketing Sales Rule. Not every state exempts B2B telemarketing calls under state law.

Telemarketers often rely on the business-to-business exemption from applicable Do Not Call registries and other telemarketing rules. The B2B exemption to the TSR applies only to calls inducing a sale from a “business entity.” Telemarketing calls that solicit consumers at their place of business are not B2B solicitations and are not exempt from the TSR.

Additionally, B2B calls are not exempt from FCC wireless dialing rules when using an automatic telephone dialing system. The Telephone Consumer Protection Act rule against calling cell phone numbers with automatic telephone dialing systems does apply to B2B calls.

It is crucial for marketers to know whether the telephone number being dialed is a wireless number, a landline, a business phone, or a business phone that doubles as a personal phone.

A Do Not Call case out of the Southern District of Ohio is worth noting. The matter of Blevins v. Premium Merchant Funding One, LLC (2018), involved a couple of text messages that were allegedly sent by defendant to plaintiff’s number that was registered on the national DNC list. The reason this matter is noteworthy is, in part, because the plaintiff uses the telephone number for personal and business purposes.

On the basis that Do Not Call list protections apply to residential telephone numbers, defendant sought dismissal of the case. The court rejected defendant’s argument on the basis that the FCC has declined to exempt from the do-not-call rules those calls made to home-based businesses, rather reviewing such calls as they are brought to its attention to determine whether or not the call was made to a residential subscriber. Thus, the court found that dismissing the case was premature because it had not yet been determined whether the TCPA should apply in this circumstance, to a number used for dual purposes.calling cell phone numbers with automatic telephone dialing systems does apply to B2B calls.