Do-not-call registry; Whether a mobile-phone user can be considered a residential telephone subscriber under the Telephone Consumer Protection Act (TCPA); Stevens-Bratton v TruGreen, Inc (WD TN); Whether plaintiff pled a claim under MCR 2.116(C)(8); Michigan Home Solicitation Sales Act (MHSSA); Michigan Telephone Companies as Common Carriers Act; MCL 484.125; Consent/established business relationship; Private right of action under 47 CFR § 64.1601(e)

In an issue of first impression regarding whether there is a private right of action as to § 64.1601(e), the court held that there is not. But it otherwise concluded the trial court erred by granting summary disposition to defendants at a very early stage of the litigation. Thus, it vacated in all respects except on the count for violation of § 64.1601(e). “Plaintiff sued defendants on claims of unlawful robocalls and violations of the national do-not-call registry.” A key aspect of the case turned on whether “a mobile phone can be (and often is) used for residential purposes. Neither federal nor state law compels a contrary conclusion, notwithstanding defendants’ arguments.” The court considered, among other things, the “trial court’s conclusion that plaintiff is not a user of residential-telecommunications services, which impacts Counts II, III, V, and VI.” The trial court held “that a mobile-phone user cannot, as a matter of law, qualify as a residential telephone subscriber for purposes of the TCPA. The trial court erred in this respect.” The court concluded that a plain reading of § 64.1200(e) confirms that, at least in the FCC’s view, “the protections afforded to residential telephone subscribers in” §§ 227(c)(5) and “64.1200(c)(2) and (d)(4) extend to mobile-phone users who use their devices for residential purposes.” The court agreed “with the federal district court’s analysis in Stevens-Bratton on this question and adopt[ed] it here.” The court noted that little to no discovery had been conducted. It found that whether “a person uses a mobile phone for residential purposes will, in the mine-run of cases, be a fact-intensive question, one not typically answerable at the outset of litigation.” Thus, it concluded that “the trial court erred in granting summary disposition to defendants on Counts II and III with respect to whether plaintiff’s use of a mobile phone could qualify him, if factually supported, as a residential telephone subscriber.” For reasons similar to those related to the TCPA, the court concluded “that ‘residential telephone service’ under the MHSSA can, if the facts warrant, include service on a mobile device. There is nothing in the MHSSA limiting ‘residential telephone service’ to a particular type of communications provider.” In holding that the trial court did not err in granting defendants summary disposition on Count IV, concerning § 64.1601(e), the court noted that “critically, there is nothing in the statute that clearly indicates that Congress intended for private lawsuits to enforce caller-ID requirements.”