Ninth Circuit Dismisses TCPA Do-Not-Call Case

If you’ve ever put your number on the National Do Not Call Registry and still gotten a cheery,
“Hi, do you have a minute to talk about pest control?”congrats. You’ve met the modern American
pastime: telemarketing whack-a-mole.

But here’s the plot twist that keeps TCPA lawyers employed: being annoyed isn’t always enough.
You have to plead the claim like you’re explaining it to a judge who has seen everything,
and whose favorite words are “plausible” and “nonconclusory.” In a recent decision out of a federal
court within the Ninth Circuit, a TCPA Do-Not-Call case got tossed (with leave to amend) because
the complaint didn’t give enough meat on the bone about what was actually said on the calls.

Translation: “They tried to sell me something” can be too vague. In TCPA-land, you sometimes have
to show your worklike it’s math class, but with more subpoenas.

TCPA Do-Not-Call 101: The Rules That Make Telemarketers Sweat

The TCPA has two big buckets (and people mix them up)

The Telephone Consumer Protection Act (TCPA) isn’t one single rule; it’s a family of rules.
The Do-Not-Call (DNC) provisions live primarily in 47 U.S.C. § 227(c), and they’re
implemented through FCC regulations like 47 C.F.R. § 64.1200. One major piece:
telemarketers generally can’t initiate a telephone solicitation to a
residential telephone subscriber whose number is on the national registry.

The private lawsuit hook for national DNC violations is famously specific:
you typically need more than one violating call within a 12-month period
by or on behalf of the same entity to sue under the statute’s DNC private right of action.
That’s different from other TCPA provisions (like certain robocall/robotext restrictions),
where a single call can sometimes be enough.

What counts as a “telephone solicitation,” anyway?

This phrase is the center of gravity for many DNC lawsuits. Under the FCC’s regulation,
a “telephone solicitation” generally means initiating a call or message for the purpose of
encouraging the purchase or rental of, or investment in, goods or servicesbut it excludes,
among other things, certain calls made with prior express invitation/permission, calls within an
established business relationship, and calls on behalf of tax-exempt nonprofits.

That definition is why the “what was said” question matters so much. If the communication is a
sales pitch, it’s likely a solicitation. If it’s purely informational (“Your appointment is tomorrow”),
it’s probably not. If it’s a weird hybrid (“Your appointment is tomorrowalso we’re running a special!”),
welcome to litigation, population: everyone.

The registry doesn’t “block” callsso compliance is the whole game

The FTC describes the National Do Not Call Registry as a list of numbers from consumers who want
to limit telemarketing calls. It doesn’t magically stop your phone from ringing; it creates rules
that legitimate telemarketers must followand enforcement tools when they don’t.
Telemarketers and sellers typically must access the registry and scrub their calling lists against it
on a recurring basis (the FTC’s guidance highlights regular updating expectations), and the FTC also
publishes periodic updates on registry access fees.

The “Ninth Circuit” Dismissal: A Court Says “Tell Me What They Actually Said”

The case in plain English

In Bell v. Hawx Services, LLC (a federal court in California, within the Ninth Circuit),
the plaintiff alleged he had registered his cell phone number on the national DNC registry years earlier.
He said he received two calls the same morning from the same number, and that the caller tried to
sell him the defendant’s pest control services. After he said he wasn’t interested and asked not
to be called again, he allegedly received another call about an hour later.

On paper, that sounds like a classic DNC fact pattern: registered number + multiple solicitations
within 12 months + same company. The defendant moved to dismiss. The court dismissed the complaint’s
TCPA DNC claim with leave to amend, emphasizing that the pleading didn’t provide enough
factual detail about the content of the calls to plausibly establish they were “telephone solicitations,”
rather than relying on conclusory labels.

Why “they solicited me” can be a conclusion, not a fact

Federal pleading rules don’t demand a line-by-line transcript. But they do demand more than a
bare conclusion. Courts applying the familiar plausibility standard want something concrete:
a description of the pitch, what product or service was offered, whether there were discounts,
whether the caller asked for payment, whether they were following up on a prior inquiry, or other
facts that let the court reasonably infer “this was a solicitation.”

Think of it this way: “They called me” is a fact. “They tried to sell me a thing” can be a conclusion.
“They offered a monthly pest plan, asked if I wanted to schedule service, and said there was a
limited-time discount” is a fact pattern that smells like telemarketing from a mile away.

The quiet subplot: injunctive relief and future harm

Many TCPA plaintiffs also ask for an injunctionbasically, “make them stop.”
But injunctions require a plausible threat of future injury, not just anger about the past.
Courts look at things like: has the calling continued, does the caller still have the number, and
are there allegations that suggest the calls are likely to happen again.

Even when a court is skeptical about the pleading of “telephone solicitation,” it may separately
analyze whether the plaintiff has alleged enough to claim an ongoing risk (or not). The takeaway is
practical: pleadings often live or die on details, and injunction requests live or die on plausibility.

Why This Ruling Matters: The DNC Private Right Has Sharp Edges

Edge #1: The “more than one call in 12 months” requirement

The DNC private right is not an open bar; it’s more like a bouncer checking IDs.
Under the statute, a person who received more than one violating call in a 12-month
window may sue, seek an injunction, and recover the greater of actual loss or statutory damages
(with potential trebling for willful/knowing violations). There’s also a notable statutory
affirmative defense: a defendant can argue it had reasonable practices and procedures,
implemented with due care, to prevent DNC violations.

Practically, this means both sides fight over (a) call counts and timing, (b) whether the communications
qualify as solicitations, and (c) whether the defendant’s compliance program is real or “PowerPoint real.”

Edge #2: “Residential subscriber” isn’t just about landlines anymore

The Ninth Circuit has addressed how DNC concepts apply to cell phonesespecially mixed-use phones.
In Akins/Chennette v. Porch.com, the court discussed the DNC framework and the idea that
wireless numbers placed on the registry can be treated as “residential” for TCPA DNC purposes, even when
used for both personal and business communicationsmaking it harder to wave off a DNC claim simply because
someone sometimes uses their phone for work.

Edge #3: Standing fights are not going away

In Hall v. Smosh Dot Com, Inc., the Ninth Circuit held that the owner/subscriber of a phone
number on the DNC registry can suffer an injury in fact when unsolicited telemarketing calls or texts are
sent to that numbereven if the subscriber wasn’t the primary user at the time.
That matters because standing challenges are a common early defense move in TCPA cases.

Edge #4: Text messages keep drifting into “call” territory

Courts (including within the Ninth Circuit) have treated texts as “calls” in various TCPA contexts, and a
January 2026 Ninth Circuit decision discussed that a text message is a “call” for TCPA purposeswhile also
parsing what it means to “initiate” a call using a prerecorded voice when the prerecorded content is embedded
behind a user pressing play.

For DNC compliance, the practical message is simple: if you’re running text campaigns that encourage purchases,
you should assume they can trigger TCPA scrutiny, and align opt-out/consent practices accordingly.

Practical Takeaways for Businesses: How Not to Become a TCPA Headline

1) Document the “why” behind every marketing contact

• Lead source tracking: Know where the number came from, when, and what the consumer saw.
• Permission evidence: If you’re relying on prior express invitation/permission, keep the proof.
• Established business relationship: If that’s your theory, you need records, not vibes.

2) Scrub like you mean it

DNC compliance is largely operational. The FTC’s telemarketing guidance emphasizes that sellers and telemarketers
must access and use the registry appropriately, and keep lists updated regularly. If you outsource dialing, your
vendor’s failures can still become your courtroom problem.

3) Train agents to stop saying the quiet part out loud

In the Bell pleading, a caller allegedly said he couldn’t control the calling because he was using an autodialer.
Whether or not that’s true, it’s the kind of statement that turns a routine sales call into Exhibit A.
Script your teams to (a) honor do-not-call requests, (b) explain opt-outs, and (c) avoid casual admissions that
sound like “compliance is optional.”

4) Assume your first line of defense will be “what exactly was said?”

The dismissal in Bell highlights a defense tactic that is both simple and effective: challenge whether the plaintiff
pled enough facts to show the call was a “telephone solicitation.” Businesses that retain call recordings, call notes,
or campaign scripts can often sharpen that fighteither to defeat the claim or to narrow it.

5) Build the affirmative defense before you need it

The DNC statute explicitly contemplates an affirmative defense based on reasonable practices and procedures to prevent
violations. That defense is much easier to assert when you can point to a real compliance program: written policies,
vendor audits, periodic scrubbing logs, training materials, and escalation processes for complaints.

Quick FAQ: Questions People Ask Right Before They Call a Lawyer

“If my number is on the registry, can I sue after one call?”

Under the DNC private right of action, the text of the statute focuses on receiving more than one violating call
within a 12-month period by or on behalf of the same entity. Other TCPA provisions (outside the DNC framework)
can have different thresholds.

“Do DNC rules apply to cell phones?”

The regulatory framework has long extended DNC protections to wireless numbers in relevant circumstances, and Ninth
Circuit case law has discussed how wireless subscribers who register can be treated as residential for DNC purposes,
including in mixed-use contexts. In practice, companies should treat DNC compliance as applying to both landlines and
mobile numbers unless a specific exemption clearly fits.

“What if the consumer ‘asked for info’ once?”

That’s where the facts matter. Prior express invitation/permission and established business relationship concepts can
be relevant defenses, but they’re not magic words. Courts often scrutinize what the consumer actually agreed to, how
clearly, and whether the outreach stayed within the scope of that permission.

Experience Corner (About ): What These Cases Feel Like in Real Life

The funniest part of TCPA Do-Not-Call litigation is that it often starts with something painfully ordinary: a lead form,
a dialer, and a Monday morning quota. The least funny part is what happens when those ordinary parts don’t talk to each
other. Here are a few “this is how it usually goes” scenarios that show why the Bell dismissalfocused on call content
and pleading detailconnects to day-to-day compliance reality.

1) The “we bought the lead, so it must be fine” trap. A marketing team buys leads from a vendor that
promises “fully compliant opt-ins.” Sales reps hit the dialer, calls go out, and suddenly someone says they never asked
for anything and their number’s on the registry. In discovery, the vendor’s “proof” is a spreadsheet with timestamps but
no screenshot of the disclosure language, no archived landing page, and no way to show what the consumer actually saw.
Even if the company acted in good faith, the absence of real evidence makes everything harderand makes early motions
(including motions to dismiss or summary judgment later) a gamble.

2) The “half-scrub” problem. A business scrubs against the national registry “monthly-ish,” but campaign
teams launch new lists every week. The dialer vendor is set to suppress DNC numbers, but only for certain campaigns.
Someone changes settings during a busy season and forgets to flip them back. The result is not a cartoonish compliance
failurejust a handful of calls to the wrong people that snowball into demand letters. If you want the statutory
affirmative defense about reasonable practices to do any work, you need logs, repeatable processes, and controls that
don’t depend on one person’s memory.

3) The “what did we actually say?” surprise. Companies sometimes assume TCPA DNC cases are only about
call frequency and the registry. Then a judge wants to know what was said: Was it a pitch? A follow-up? A confirmation?
A “courtesy call” that included a discount? If the campaign script is vagueor if reps freestyleyou can end up in a
credibility contest. Meanwhile, plaintiffs can face the opposite issue: they felt the call was salesy, but their complaint
describes it in one sentence. Bell is a reminder that courts may want more detail than “they tried to sell me something,”
even when everyone in the room knows what telemarketing sounds like.

4) Mixed-use phones and modern life. People use one number for everything: kids, work, appointments,
banking alerts, and the occasional doomscrolling. Ninth Circuit decisions recognizing that mixed-use mobile numbers can
still be “residential” reflect that reality. On the ground, it means businesses can’t assume “it’s a work phone” as an
easy escape hatch. If a number is on the registry, treat it like a loaded toaster: handle carefully, document everything,
and don’t leave it unattended.

5) The best compliance improvement is boring. The most effective DNC fixes aren’t flashy. They’re
checklists, audit trails, updated scripts, vendor contracts with teeth, and a culture where “stop calling this number”
is treated as an instructionnot a suggestion. It’s the kind of boring that keeps you out of court, which is the most
exciting outcome of all.

Conclusion

The lesson from this Ninth Circuit-area dismissal isn’t “the Do Not Call Registry doesn’t work.” It’s that TCPA cases
are built from details: the timing, the number of contacts, the nature of the message, and the evidence behind (or missing
from) consent and compliance procedures. For plaintiffs, a complaint has to describe the solicitation with enough factual
content to clear the plausibility bar. For businesses, the best defense is often a blend of careful documentation and a
compliance program strong enough to support the statute’s built-in “reasonable practices” defense.