TCPA Claims Partially Survive Contractor Motion to Dismiss in Texas

TYLER, Texas (LN) — The U.S. District Court for the Eastern District of Texas on June 8 granted in part HomeOver General Contractors’ motion to dismiss, tossing claims that Starling received unlawful calls despite being listed on the National Do Not Call Registry while letting claims over caller ID and a Texas business statute survive.

Plaintiff Kimberly Starling filed the putative class action alleging that Storm Leads Innovation, acting as HomeOver’s agent, placed telemarketing calls to her cell and landline numbers from November 2021 to June 2022 despite her registration on the DNC Registry and without proper caller identification.

U.S. District Judge Jeremy D. Kernodle found that Starling established an “established business relationship” with HomeOver by scheduling a roof inspection during the first call on November 16, 2021, and by telling a HomeOver employee she would call back to reschedule. Because the TCPA excludes calls to persons with whom the caller has an existing business relationship from the definition of prohibited “solicitation,” the DNC Registry claim failed.

The court rejected HomeOver’s argument that it could not be held liable for Storm Leads’ calls, finding that Starling adequately alleged ratification. Starling alleged that after she told HomeOver’s owner, Josh Nelson, about the calls, HomeOver continued to benefit by scheduling additional roof inspections. The court found these facts, taken as true, demonstrated HomeOver had full knowledge and retained the benefits of the transactions.

The caller ID claim survived. HomeOver argued that the regulation requiring caller identification, 47 C.F.R. § 64.1601(e)(1), was not enforceable through a private right of action. The court disagreed, tracing the FCC’s authority to § 227(c) of the TCPA, which expressly grants a private right of action for violations of regulations prescribed under that subsection. The court noted that caller ID has been considered a § 227(c) “network technology” since the FCC promulgated the Do Not Call rules in 2003.

The internal do-not-call claim fell because Starling asked to be added to HomeOver’s internal list during a March 10, 2022 call to her cell phone, but the only subsequent call was to her landline from an entity using the alias “TM Roofing.” The court found Starling did not adequately allege that TM Roofing was HomeOver, noting that the callback number provided belonged to Storm Leads, not HomeOver.

The Texas Business and Commerce Code § 302.101 claim survived because the statute’s definition of “solicitation” lacks the business-relationship exception present. Starling’s complaint alleged she had an 817-area code number and that HomeOver is a Carrollton, Texas-based company, satisfying the statute’s requirement that calls be made to or from a Texas location.

The court declined to rule on Starling’s requests for attorneys’ fees and injunctive relief, calling such consideration premature at the motion to dismiss stage.