Somewhere out there is a defense lawyer billing real hours to argue that the TCPA Do-Not-Call Registry only protects phones with cords. In Bennett v. Allstate Ins. Co., 2026 U.S. Dist. LEXIS 176840 (W.D. Tex. July 22, 2026), that argument got its latest run — and its latest loss.
The motion to dismiss presented the question of whether the DNC rules apply to cellular numbers at all. The defendant pointed to the text of the TCPA— § 227(c)(1) directs the FCC to protect "residential telephone subscribers," and 47 C.F.R. § 64.1200(c)(2) prohibits solicitations to a registered "residential telephone subscriber" — and argued that a cell phone is, as a matter of law, not a residential telephone.
The court took the argument seriously enough to survey the terrain. There is a genuine district split, as Hunsinger v. Alpha Cash Buyers acknowledged, and the Fifth Circuit hasn't touched it. On one side sit cases like Cunningham v. Sunshine Consulting Grp. and Cunningham v. Politi. On the other sit Cunningham v. McDonald, Stevens-Bratton v. TruGreen, Guadian v. United Tax Defense, and Myrick v. Adapthealth — decisions holding that a cell number can qualify when the plaintiff pleads it's used for residential purposes.
What tipped the scale was the FCC's own 2003 order, which said it was "more consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections." Inre Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991,18 FCC Red. 14014, 14039 (2003).
The FCC's reasoning was not complicated: Congress passed the TCPA because of the nuisance, expense, and burden telemarketing places on consumers, and consumers had moved to cell phones.
The defendant's fallback was a compliance-burden argument — treating cell lines as residential would chill speech, because a caller has no way to know whether a given number is personal or business. The court answered that with logic: by the same argument, there is no way for callers to know whether any phone number is actually used for residential or commercial purposes. The problem the defendant described isn't a cell phone problem. It's a telemarketing problem, and it's been one since the registry opened.
There was also a serial-litigant argument, built on Barton v. LeadPoint, Inc., 2023 WL 4646103 (9th Cir. July 20, 2023) — the plaintiff files a lot of TCPA cases, therefore the number must be a business line. The court didn't bite. Filing lawsuits is not a business use of a telephone number in any sense the statute cares about.
The plaintiff hadn't yet pleaded residential use, but his opposition laid out what he could allege: the number is used primarily for personal, family, and household purposes; it's his contact number for family, friends, medical providers, and household services; it isn't held out for business or connected to any enterprise; he pays for it personally; and he registered it to protect his residential privacy. That's the whole checklist.
The recommendation from the magistrate judge: deny the motion to dismiss and grant leave to amend.
Until then, the test for whether a number has DNC protections under the TCPA is what the number is used for — not what it plugs into.
