FOR PUBLICATION
`
`FILED
`
`OCT 12 2022
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`No. 20-35962
`
`D.C. No. 1:20-cv-00201-SRB
`
`OPINION
`
`NATHAN CHENNETTE; LARRY
`AKINS; GARY ALGER; GABRIEL
`ANGUIANO; JOSHUA BARKDULL; R.
`B. BEAL; RORY BOND; VADIM
`BONDAR; CHRISTOPHER BORGES;
`CHARLENE BRANHAM; ROGER
`BURT; ADAM BYERLEY; STEFANIE
`CHRISTOPHERSON; JASON
`COULTER; TRAVIS CRONE; JOSE DE
`LA MORA; STEVEN DICK; GREG
`DODGSON; BRIANA ETHINGTON;
`JONATHON FORSYTHE; DAVID
`FROST; SCOTT GLUBAY; STRYDER
`HARTLEY; JOSEPH HARTSOUGH;
`ANDREA HATCH; NATHANIEL
`HOOD; NICHOLAS JONES; TOM
`KEFFER; ROGER KENNEDY;
`MICHAEL LARSON; JONAH LUCHT;
`CHRISTIAN LYNESS; JONATHAN
`MCCORMICK; APRIL MICHAEL;
`NICK MILLER; GABRIEL MIRANDA;
`ALFONSO MIRANDA; MICHAEL
`MONZO; JAMES PAYNE; ROBERT
`PELCHER; SEAN PRIEST; KYLE
`ROBB; JOHN ROWE; JAKE ROZSA;
`RON SCHAEFER; OWEN SHAW;
`GEORGE SIMMONS; MICHAEL
`SMITH; LEVI STODDARD; JEREMY
`VOGEL; NICOLE WOOD,
`
`Plaintiffs-Appellants,
`
`

`

` v.
`
`PORCH.COM, INC.; GOSMITH INC.;
`MATTHEW EHRLICHMAN; BRENTON
`MARRELLI; DARWIN WIDJAJA,
`
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the District of Idaho
`Stephen R. Bough, District Judge, Presiding
`
`Argued and Submitted October 4, 2021
`Portland, Oregon
`
`Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.
`
`Opinion by Judge W. Fletcher;
`Concurrence by Judge Bress;
`Partial Dissent by Judge Ikuta
`
`2
`
`

`

`
`
`
`
`
`
`SUMMARY*
`
`Telephone Consumer Protection Act
`
`The panel reversed the district court’s judgment dismissing a complaint, brought
`by 51 individuals who are home improvement contractors, alleging violations of the
`Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b) and (c); and
`remanded.
`
`Defendants are GoSmith, Inc., Porch.com, Inc. (which acquired GoSmith), and
`three individual corporate officers.
`
`The TCPA prohibits calls using automatic telephone dialing systems (“ATDS”)
`to cell phones, see 47 U.S.C. § 227(b), and telephone solicitations sent to residential
`telephone subscribers who have registered their phone numbers on the national do-
`not-call registry, see 47 U.S.C. § 227(c). Both provisions provide private causes of
`action for damages and injunctive relief.
`
`The complaint alleges that defendants’ use of ATDS to plaintiffs’ cell phones
`violated (and continues to violate) § 227(b); and that defendants’ text messages to
`plaintiffs’ cell phones that were (and are) registered on the national do-not-call
`registry violated (and continue to violate) § 227(c). The district court assumed that
`plaintiffs have Article III standing but held they lack statutory standing.
`
`Defendants argued that plaintiffs lack Article III standing because they have
`solicited business inquiries from potential customers and therefore have not suffered
`a concrete and particularized injury in receiving solicitations from defendants. The
`panel disagreed, noting that plaintiffs did not expressly consent to receive text
`messages from GoSmith, which sought to sell information about potential clients,
`and their alleged injuries are particularized.
`
`The panel also held that plaintiffs have statutory standing under § 227(b) and (c)
`of the TCPA. Defendants argued that the TCPA protects only individuals from
`unwanted calls, and that plaintiffs, as home improvement contractors, fall outside of
`
`
`* This summary constitutes no part of the opinion of the court. It has been
`
`prepared by court staff for the convenience of the reader.
`
`

`

`
`TCPA’s zone of interest. Because the statutory text includes not only “person[s]”
`but also “entit[ies],” the panel concluded that all of the plaintiffs have standing to
`sue under § 227(b) of the TCPA.
`
`Those plaintiffs who have placed their cell phone numbers on the national do-
`not-call registry allege additional claims under § 227(c). Noting, correctly, that
`§ 227(c) and its implementing regulations apply only to “residential” telephone
`subscribers, defendants argued that because plaintiffs use their cell phones both for
`personal calls and for calls associated with their home improvement businesses, they
`do not qualify as residential subscribers. The disputed question was whether a cell
`phone that is used for both business and personal purposes can be a “residential”
`phone within the meaning of § 227(c). The panel noted that in the view of the
`Federal Communications Commission (FCC), a subscriber’s use of a residential
`phone (including a presumptively residential cell phone) in connection with a home-
`based business does not necessarily take an otherwise residential subscriber outside
`the protection of § 227(c). Relying on the FCC’s regulations and orders, the panel
`concluded that a presumptively residential cell phone can be residential even when
`used for both personal and business purposes. In the absence of FCC guidance on
`the precise question of when a mixed-use phone ceases to become a residential phone
`or a business phone, the panel held that plaintiffs’ registered cell phones that are
`used for both personal and business purposes are presumptively “residential” within
`the meaning of § 227(c). At the motion to dismiss stage, the panel therefore
`concluded that these plaintiffs have standing to sue under § 227(c). The panel wrote
`that after discovery, defendants may seek to argue that they have rebutted the
`presumption by showing that plaintiffs’ cell phones are used to such an extent and
`in such a manner as to be properly regarded as business rather than “residential”
`lines.
`
`Concurring, Judge Bress wrote to address the dissent’s claims that the majority
`“usurps the role of the Federal Communications Commission” and enacts a
`regulatory framework that is based on the majority’s “own policy preferences.” He
`wrote that the majority opinion is correct to conclude that wireless users may be
`“residential subscribers” depending on how they use their phones; and that this
`conclusion is supported by the FCC’s guidance, the conclusions of other courts, and
`plain common sense.
`
`Dissenting in part, Judge Ikuta wrote that the majority usurps the role of the FCC
`and creates its own regulatory framework for determining whether a cell phone is
`actually a “residential telephone,” instead of deferring to the FCC’s narrower and
`more careful test.
`
`

`

`
`
`COUNSEL
`
`James S. Wertheim (argued), LawHQ PC, Pepper Pike, Ohio; Thomas Alvord,
`Rebecca A. Evans, and Crystal L. Cooke, LawHQ LLC, Salt Lake City, Utah; for
`Plaintiffs-Appellants.
`Benjamin G. Shatz (argued) and Christine M. Reilly; Manatt, Phelps & Phillips LLP,
`Los Angeles, California; Kristin E. Haule, Greenberg Glusker Fields Claman &
`Machtinger LLP, Los Angeles, California; for Defendants-Appellees.
`
`

`

`W. FLETCHER, Circuit Judge:
`
`The Telephone Consumer Protection Act (“TCPA”) prohibits certain
`
`unsolicited telephone calls. As relevant here, the TCPA prohibits calls using
`
`automatic telephone dialing systems (“ATDS”) to cell phones, see 47 U.S.C.
`
`§ 227(b), and telephone solicitations sent to residential telephone subscribers who
`
`have registered their phone numbers on the national do-not-call registry, see id. §
`
`227(c). Both subsections provide private causes of action for damages and
`
`injunctive relief. Plaintiffs-appellants (“plaintiffs”) filed suit against defendants-
`
`appellees (“defendants”) alleging violations of § 227(b) and (c). The district court
`
`assumed that plaintiffs have Article III standing but held that they lack statutory
`
`standing. It did not reach other questions presented. We have jurisdiction under
`
`28 U.S.C. § 1291 and reverse.
`
`I. Background
`
`We take as true the factual allegations in plaintiffs’ complaint. Plaintiffs
`
`Nathan Chennette and fifty other individuals are home improvement contractors.
`
`Defendants are GoSmith, Inc. (a Delaware corporation), Porch.com, Inc. (which
`
`acquired GoSmith as a wholly owned subsidiary in 2017), Matthew Ehrlichman
`
`(CEO of Porch.com and GoSmith), Brenton Marrelli (CEO and co-founder of
`
`3
`
`

`

`GoSmith), and Darwin Widjaja (chief technology officer and co-founder of
`
`GoSmith, as well as VP of Porch.com).
`
`GoSmith’s and Porch.com’s business model is to sell client leads to home
`
`improvement contractors for plumbing, landscaping, painting, and other home
`
`improvement services. Between 2012 and 2019, GoSmith scraped websites such
`
`as Yelp.com, YellowPages.com, and BBB.org for contact information of over ten
`
`million home improvement contractors. GoSmith stored the contact information
`
`on a database and sent automated text messages to contractors who had cell phone
`
`numbers. A typical text message read, “[Name] is wanting [service] in [city]. You
`
`have 1st priority. Reply 1 if interested, 3 if not.” If a contractor receiving the text
`
`message was interested in learning more about the lead, GoSmith offered the
`
`option of purchasing “appointment credits” (priced at $8 per credit on at least one
`
`occasion) to connect the contractor with the potential client.
`
` Plaintiffs allege that they have “residential [cell] phone numbers which
`
`[they] use in their home-based[] businesses.” GoSmith sent 7,527 text messages to
`
`plaintiffs’ cell phone numbers using an ATDS. Fifteen of the plaintiffs had
`
`registered their numbers on the national do-not-call registry. Those plaintiffs
`
`received 2,754 text messages from GoSmith on their registered numbers. All
`
`plaintiffs received more than one text message from GoSmith within a 12-month
`
`4
`
`

`

`period. None of the plaintiffs had provided their cell phone numbers to GoSmith
`
`or had consented to receiving text messages from GoSmith.
`
`Plaintiffs filed suit in district court in 2020. Their complaint alleges that
`
`defendants’ use of ATDS to send automated text messages to plaintiffs’ cell
`
`phones violated (and continues to violate) § 227(b); and that defendants’ text
`
`messages to plaintiffs’ cell phones that were (and are) registered on the national
`
`do-not-call registry violated (and continue to violate) § 227(c). Plaintiffs seek
`
`damages and injunctive relief under both § 227(b) and (c).
`
`Defendants moved to dismiss, contending inter alia that plaintiffs lack
`
`Article III and statutory standing. The district court assumed that plaintiffs have
`
`Article III standing, but held under the “zone of interests” test of Lexmark
`
`International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), that
`
`plaintiffs lack statutory standing under the TCPA. The district court dismissed
`
`plaintiffs’ complaint with prejudice. Plaintiffs timely appealed.
`
`II. Standard of Review
`
`We review de novo a motion to dismiss, “accepting as true all well-pleaded
`
`allegations of material fact and construing those facts in the light most favorable to
`
`the non-moving party.” Judd v. Weinstein, 967 F.3d 952, 955 (9th Cir. 2020)
`
`(citing Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017)).
`
`5
`
`

`

`III. Analysis
`
`A. Article III Standing
`
`We first address Article III standing. “[T]hose who seek to invoke the
`
`jurisdiction of the federal courts must satisfy the threshold requirement imposed by
`
`Article III of the Constitution by alleging an actual case or controversy.” Maya v.
`
`Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (alteration in original) (quoting
`
`City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)). “[T]o satisfy Article III’s
`
`standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’
`
`that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
`
`hypothetical; (2) the injury is fairly traceable to the challenged action of the
`
`defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
`
`be redressed by a favorable decision.” Id. (alteration in original) (quoting Friends
`
`of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 180–81 (2000)). An
`
`allegation of a bare procedural violation is not enough to satisfy Article III because
`
`the injury “must affect the plaintiff in a personal and individual way” and must be
`
`“de facto” (that is, “actually exist”). Spokeo, Inc. v. Robins, 578 U.S. 330, 339,
`
`340 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)).
`
`We have previously considered what constitutes an injury under the TCPA
`
`for purposes of Article III. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d
`
`6
`
`

`

`1037 (9th Cir. 2017). We wrote in Van Patten that in enacting the TCPA,
`
`Congress “establishe[d] the substantive right to be free from certain types of phone
`
`calls and texts absent consumer consent . . . [and] identified unsolicited contact as a
`
`concrete harm.” Id. at 1043. “A plaintiff alleging a violation under the TCPA
`
`‘need not allege any additional harm beyond the one Congress has identified.’” Id.
`
`(quoting Spokeo, 578 U.S. at 342). “[A]n effective consent is one that relates to
`
`the same subject matter as is covered by the challenged calls or text messages.” Id.
`
`at 1044–45. Importantly, “providing a phone number in itself [does not mean] that
`
`the consumer has expressly consented to contact for any purpose whatsoever”:
`
`Instead, the scope of consent is “related to the reason [the plaintiff] gave his
`
`number in the first place.” Id. at 1045–46.
`
`Defendants argue that plaintiffs lack Article III standing because they have
`
`solicited business inquiries from potential customers and therefore have not
`
`suffered a concrete and particularized injury in receiving solicitations from
`
`defendants. We disagree. Plaintiffs allege in their complaint that they received
`
`unsolicited, unconsented automated text messages from GoSmith on their cell
`
`phones. Even assuming that GoSmith acquired plaintiffs’ phone numbers through
`
`publicly available online directories, plaintiffs did not provide “prior express
`
`consent” as we construed that phrase in Van Patten. By posting their cell phone
`
`7
`
`

`

`numbers on Yelp or Facebook, plaintiffs advertised their businesses to clients who
`
`needed home improvement services. They did not expressly consent to receive
`
`text messages from GoSmith, which sought to sell information about potential
`
`clients.
`
`Plaintiffs’ alleged injuries are particularized. Defendants argue that the
`
`complaint alleges only a “generalized grievance,” pointing out that plaintiffs
`
`calculate the approximate number of received text messages based on an
`
`assumption that each plaintiff received two messages per week. But the TCPA
`
`provides that even one unconsented message can violate the statute, and defendants
`
`have provided no basis, at this point in the litigation, to disbelieve plaintiffs’
`
`allegation that each of them has received at least one message. “A plaintiff
`
`alleging a violation under the TCPA ‘need not allege any additional harm beyond
`
`the one Congress has identified’” to establish Article III standing. Van Patten, 847
`
`F.3d at 1043 (quoting Spokeo, 578 U.S. at 342). Receiving even one unsolicited,
`
`automated text message from GoSmith is the precise harm identified by Congress.
`
`The harm plaintiffs have plausibly alleged is particularized because it “affect[s
`
`them] in a personal and individual way.” Spokeo, 578 U.S. at 339 (quoting Lujan,
`
`504 U.S. at 560 n.1). Whether each plaintiff has, in fact, received one or more
`
`such messages is a matter for proof at a later stage of proceedings.
`
`8
`
`

`

`We therefore conclude that plaintiffs have alleged a concrete and
`
`particularized injury sufficient for Article III standing.
`
`B. Standing Under § 227(b)
`
`All of the plaintiffs allege claims under § 227(b). Statutory standing
`
`requires a plaintiff to “fall within the zone of interests protected by the law
`
`invoked.” Lexmark Int’l, Inc., 572 U.S. at 129 (quoting Allen v. Wright, 468 U.S.
`
`737, 751 (1984)). “Whether a plaintiff comes within the zone of interests is an
`
`issue that requires us to determine, using traditional tools of statutory
`
`interpretation, whether a legislatively conferred cause of action encompasses a
`
`particular plaintiff’s claim.” Id. at 127 (internal quotation marks omitted).
`
`In interpreting a statute, “we begin, as we must, with a careful examination
`
`of the statutory text.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,
`
`1721 (2017). In relevant part, § 227(b) provides:
`
`It shall be unlawful for any person within the United States . . . to make
`any call . . . using any automatic telephone dialing system . . . to any
`telephone number assigned to a . . . cellular telephone service[.]
`
`47 U.S.C. § 227(b)(1)(A)(iii). Section 227(b) further provides that “[a] person or
`
`entity” may recover money damages or obtain injunctive relief. Id. § 227(b)(3)
`
`(emphasis added). Using a plain language analysis and reading the statutory
`
`language in context, we conclude that under the most natural reading of the term,
`
`9
`
`

`

`“entity” includes a business. Section 227(b) thus covers calls to the cell phones of
`
`businesses as well as individuals.
`
`Defendants argue, despite the language of the statute, that the TCPA protects
`
`only individuals from unwanted calls. They contend that plaintiffs, as home
`
`improvement contractors, fall outside of the TCPA’s zone of interest. Defendants
`
`rely on legislative history, pointing to general statements in Senate and House
`
`reports suggesting that Congress did not intend to disrupt normal business
`
`communications. But where, as here, “the words of the statute are unambiguous,
`
`the ‘judicial inquiry is complete.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98
`
`(2003) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)).
`
`Because the statutory text includes not only “person[s]” but also “entit[ies],” we
`
`conclude that all of the plaintiffs have standing to sue under § 227(b) of the TCPA.
`
`C. Standing Under § 227(c)
`
`Those plaintiffs who have placed their cell phone numbers on the national
`
`do-not-call registry allege additional claims under § 227(c). Noting, correctly, that
`
`§ 227(c) and its implementing regulations apply only to “residential” telephone
`
`subscribers, defendants argue that because plaintiffs use their cell phones both for
`
`personal calls and for calls associated with their home improvement businesses,
`
`they do not qualify as residential subscribers.
`
`10
`
`

`

`Section 227(c) of the TCPA directs the FCC to promulgate regulations under
`
`which “residential subscribers” may request that their telephone numbers be
`
`included in a national do-not-call registry and database, and to prohibit telephone
`
`solicitation to “any subscriber included in such database.” 47 U.S.C.
`
`§ 227(c)(3)(F). In relevant part, the FCC’s implementing regulations provide:
`
`No person or entity shall initiate any telephone solicitation to:
`. . .
`(2) A residential telephone subscriber who has registered his or
`her telephone number on the national do-not-call registry of
`persons who do not wish to receive telephone solicitations that is
`maintained by the Federal Government.
`
`47 C.F.R. § 64.1200(c)(2). FCC regulations protecting residential subscribers “are
`
`applicable to any person or entity making telephone solicitations or telemarketing
`
`calls to wireless telephone numbers to the extent described in the Commission’s
`
`Report and Order, CG Docket No. 02-278, FCC 03-153, ‘Rules and Regulations
`
`Implementing the Telephone Consumer Protection Act of 1991’ [(‘2003 TCPA
`
`Order’)].” 47 C.F.R. § 64.1200(e) (emphasis added). In the view of the FCC,
`
`expressed in the 2003 TCPA Order, “it is more consistent with the overall intent of
`
`the TCPA to allow wireless subscribers to benefit from the full range of TCPA
`
`protections,” and “wireless subscribers often use their wireless phones in the same
`
`manner in which they use their residential wireline phones.” 2003 TCPA Order,
`
`11
`
`

`

`18 FCC Rcd. 14014, 14038 (2003). During oral argument, defendants conceded
`
`that cell phones can be “residential” for purposes of § 227(c).
`
`The disputed question is whether a cell phone that is used for both business
`
`and personal purposes can be a “residential” phone within the meaning of § 227(c).
`
`In the 2003 TCPA Order, the FCC concluded that a cell phone registered on the
`
`do-not-call registry is presumptively a residential phone:
`
`As a practical matter, since determining whether any particular wireless
`subscriber is a “residential subscriber” may be more fact-intensive than
`making the same determination for a wireline subscriber, we will
`presume wireless subscribers who ask to be put on the national
`do-not-call list to be “residential subscribers.” Such a presumption,
`however, may require a complaining wireless subscriber to provide
`further proof of the validity of that presumption should we need to take
`enforcement action.
`
`Id. at 14039 (footnote omitted). In the wake of the 2003 TCPA Order, the Direct
`
`Marketing Association (“DMA”) petitioned the FCC, asking it to exempt calls to
`
`business numbers that have been registered on the national do-not-call list. The
`
`FCC declined to do so, writing:
`
`[W]e disagree with the DMA that the rules should be revised to
`expressly exempt calls to business numbers. The 2003 TCPA Order
`[quoted above] provided that the national do-not-call registry applies to
`calls to “residential subscribers” and does not preclude calls to
`businesses. . . . We . . . decline 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.
`
`12
`
`

`

`In re Rules and Regulations Implementing the Telephone Consumer Protection Act
`
`of 1991 (“2005 TCPA Order”), 20 FCC Rcd. 3788, 3793 (2005) (footnotes
`
`omitted). Thus, in the view of the FCC, a subscriber’s use of a residential phone
`
`(including a presumptively residential cell phone) in connection with a home-based
`
`business does not necessarily take an otherwise residential subscriber outside the
`
`protection of § 227(c).
`
`A few district courts have held, despite the view of the FCC, that a phone
`
`used for both personal and businesses purposes is not a residential phone for
`
`purposes of § 227(c). See, e.g., Worsham v. Disc. Power, Inc., No. RDB-20-0008,
`
`2021 WL 50922, at *4 (D. Md. Jan. 6, 2021) (“Regardless of whether the . . .
`
`number is primarily used by [the plaintiff] for residential purposes, the number is
`
`also used for business, and business numbers are not permitted to be registered on
`
`the [do-not-call] registry.”); Shelton v. Target Advance LLC, No. 18-2070, 2019
`
`WL 1641353, at *6 (E.D. Pa. Apr. 16, 2019) (“The Phone Number is also for
`
`business use, and business numbers are not permitted to be registered on the
`
`National Do Not Call Registry.”). However, the majority of district courts have
`
`concluded that a phone used for both personal and business purposes can still be
`
`regarded as residential within the meaning of § 227(c), depending upon the facts
`
`13
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`

`

`and circumstances. See, e.g., Mattson v. New Penn Fin., LLC, No.
`
`3:18-cv-00990-YY, 2020 WL 6270907, at *2 (D. Or. Oct. 25, 2020) (“Although
`
`[plaintiff’s] use of a phone line for personal calls does not automatically transform
`
`it into a residential line for purposes of the TCPA, neither does his use of a
`
`personal line for business calls automatically transform it into a business line.”);
`
`Clements v. Porch.com, Inc., No. 1:20-cv-00003-SLG, 2020 WL 5739591, at *5
`
`(D. Ala. Sept. 24, 2020) (holding that phones used for home-based businesses fall
`
`within the TCPA’s zone of interest); Smith v. Truman Rd. Dev., LLC, No.
`
`4:18-cv-00670-NKL, 2020 WL 2044730, at *12 (W.D. Mo. Apr. 28, 2020)
`
`(holding that a cell phone used at least 60 percent for personal purposes can be
`
`residential); Blevins v. Premium Merch. Funding One, LLC, No. 2:18-cv-377, 2018
`
`WL 5303973, at *2–3 (S.D. Ohio Oct. 25. 2018) (“[C]ourts 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 also Bank v. Indep. Energy Grp.
`
`LLC, No. 12-cv-1369, 2014 WL 4954618, at *3 (E.D.N.Y. Oct. 2, 2014) (holding
`
`that phones registered as “residential” qualify as “residential” within the meaning
`
`of the TCPA as long as the subscriber does not hold out such numbers to the public
`
`as a business line).
`
`14
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`

`

`Relying on the FCC’s regulations and orders, we agree with the view of the
`
`majority of the district courts and conclude that a presumptively residential cell
`
`phone can be residential even when used for both personal and business purposes.
`
`However, the FCC has not made clear, when a phone is used for both purposes,
`
`how to determine whether a phone is “residential.” The FCC has indicated that
`
`there is a presumption that “wireless subscribers who ask to be put on the national
`
`do-not-call list [are] ‘residential subscribers.’” 2003 TCPA Order, 18 FCC Rcd. at
`
`14039. But it has so far declined to provide precise guidance for determining
`
`whether mixed-use phones are residential, stating only that “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.” 2005 TCPA Order, 20 FCC Rcd. at 3793.
`
`As may be seen from the cases cited above, in assessing whether mixed-use
`
`phones are “residential” within the meaning of § 227(c), district courts have
`
`considered: (1) whether plaintiffs have held out to the public or advertised their
`
`phone numbers for business purposes; (2) whether plaintiffs’ phones are registered
`
`with the telephone company as residential or business lines, including whether the
`
`phones are part of a family usage plan; (3) whether, and the extent to which,
`
`plaintiffs use their phones for business transactions or employment; (4) whether,
`
`and the extent to which, plaintiffs’ employers (or other business entities) pay for or
`
`15
`
`

`

`reimburse plaintiffs for their phone bills. See, e.g., Shelton, 2019 WL 1641353, at
`
`*6; Bank, 2014 WL 4954618, at *3; Worsham, 2021 WL 50922, at *4; Smith, 2020
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`WL 2044730, at *11; Mattson, 2020 WL 6270907, at *2; Southwell v. Mortg. Invs.
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`Corp., No. C13–1289, 2014 WL 4057166, at *3 (W.D. Wash. Aug. 14, 2014).
`
`We know, as discussed above, that the FCC has concluded that a cell phone
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`is presumptively residential. We also know, as discussed above, that the FCC has
`
`concluded that a phone—whether a landline or a cell phone—can be residential
`
`even when used for both personal and business purposes. What we do not know,
`
`because the FCC has explicitly declined to say, is when a mixed-use
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`phone—whether a landline or a cell phone—ceases to become a residential phone
`
`and becomes a business phone. In the absence of FCC guidance on this precise
`
`point, we hold that plaintiffs’ registered cell phones that are used for both personal
`
`and business purposes are presumptively “residential” within the meaning of §
`
`227(c).
`
`Defendants may overcome the presumption by showing that plaintiffs use
`
`their cell phones to such an extent and in such a manner that the presumption is
`
`rebutted. That is, defendants may rebut the presumption and show that the cell
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`phone is a business line. Consistent with the decisions of most district courts to
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`have addressed the issue, in determining whether the presumption is rebutted, we
`
`16
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`

`

`will consider the following factors: (1) how plaintiffs hold their phone numbers out
`
`to the public; (2) whether plaintiffs’ phones are registered with the telephone
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`company as residential or business lines; (3) how much plaintiffs use their phones
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`for business or employment; (4) who pays for the phone bills; and (5) other factors
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`bearing on how a reasonable observer would view the phone line. The FCC is free
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`in future regulations or orders to interpret § 227(c) differently. If the FCC does so,
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`we will of course defer to its interpretation, provided that the interpretation is
`
`consistent with a reasonable understanding of the statutory language. See Chevron,
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`U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
`
`The complaint alleges that some of the plaintiffs have placed their
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`“residential” cell phone numbers on the national do-not-call registry. At the
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`motion to dismiss stage and based on the particular allegations in the plaintiffs’
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`complaint, plaintiffs’ phones are presumptively residential for purposes of §
`
`227(c). We therefore conclude that these plaintiffs have standing to sue under §
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`227(c). After discovery, defendants may seek to argue that they have rebutted the
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`presumption by showing that plaintiffs’ cell phones are used to such an extent and
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`in such a manner as to be properly regarded as business rather than “residential”
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`lines.
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`Conclusion
`
`17
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`

`

`We hold that plaintiffs have standing under Article III. We also hold that
`
`plaintiffs have statutory standing under § 227(b) and (c) of the TCPA. We
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`REVERSE and REMAND to the district court for proceedings consistent with this
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`opinion.
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`REVERSED AND REMANDED.
`
`18
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`

`

`Chennette v. Porch.com, No. 20-35962
`
`BRESS, Circuit Judge, concurring:
`
`
`OCT 12 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`I write separately to address the dissent’s unfounded claims that the majority
`
`FILED
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`opinion “usurps the role of the Federal Communications Commission” and enacts a
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`regulatory framework that is based on the majority’s “own policy preferences.”
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`Dissent 1, 17. Whatever the place of such rhetoric when warranted, it is decidedly
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`unwarranted here. Indeed, if anything, it is the dissent that commits the very errors
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`for which it attacks the majority.
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`Section 227(c) of the TCPA applies to “residential telephone subscribers.” 47
`
`U.S.C. § 227(c). The FCC has passed regulations making clear that “wireless
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`telephone numbers” qualify as “residential telephone subscribers.” 47 C.F.R.
`
`§ 64.1200(e). The plaintiffs are persons who run home-based businesses, who use
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`their cell phone numbers for business and personal use, and who signed up for the
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`national do-not-call registry. The question that divides us is how to determine
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`whether these persons are “residential telephone subscribers” subject to the TCPA’s
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`corresponding protections.
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`The majority correctly holds, based on a proper interpretation of the FCC’s
`
`guidance, that in answering this question, courts must examine whether the plaintiffs
`
`use their cell phones in such a manner as to be properly regarded as business phones
`
`rather than residential lines for personal use. Maj. Op. 16–18. For its part, the
`
`
`
`1
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`

`

`dissent would seemingly ask whether the subscriber physically uses her cell phone
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`only in her home—which nobody does. Dissent 12–14. The dissent’s position
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`reflects a severe misreading of the FCC’s guidance, and one that no court to my
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`knowledge has ever embraced. The dissent’s criticisms of the majority opinion are
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`not only overstated, they are groundless.
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`The dissent errs at the outset by asserting that there is a sharp distinction
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`between “residential telephone subscribers” and cell phones under the TCPA.
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`Dissent 4–8. According to the dissent, “[a] cell phone, which is mobile and not
`
`connected to a house, fixed abode, or dwelling, is not ‘residential’ under the
`
`definitions provided by dictionaries current when the TCPA was enacted.” Dissent
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`5. Citing phone installation guides and legislative history, the dissent tells us there
`
`is a “common understanding that residential telephones are distinct from cell
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`phones.” Dissent 6. The dissent further maintains that “[t]he statutory context of
`
`the TCPA also makes clear that the term ‘residential telephone subscriber’ did not
`
`refer to a wireless telephone subscriber.” Dissent 7.
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`The dissent uses this claimed distinction to harness its entire analysis, but
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`there is a major problem: the FCC has ruled that cell phones can be regarded as
`
`residential telephones under the TCPA. Indeed, the source of that rule is none other
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`than the 2003 TCPA Order, see In re Rules & Reguls. Implementing the Tel.
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`Consumer Prot. Act of 1991, 18 FCC Rcd. 14014 (2003), the very order that the
`
`
`
`2
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`

`

`dissent accuses the majority of disregarding. Contrary to the dissent’s attempt to
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`drive a wedge between “residential telephone subscribers” and cell phone users, the
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`2003 TCPA Order ruled that wireless users may receive the protections afforded to
`
`residential subscribers. That Order expressly concludes that “Congress has indicated
`
`its intent to provide significant protections under the TCPA to wireless