Chennette v. Porch.com: Ninth Circuit Treats Mixed-Use Cell Phones as Presumptively Residential

Background

According to the complaint, GoSmith, later acquired by Porch.com, scraped contact information for more than ten million contractors from sites such as Yelp and the Better Business Bureau. It sent automated texts such as "[Name] is wanting [service] in [city]. You have 1st priority," and offered paid "appointment credits" for the leads. The plaintiffs received 7,527 texts. Fifteen had registered their numbers on the Registry and received 2,754 texts on those numbers. None had provided their numbers to GoSmith or consented.

The District of Idaho assumed Article III standing but dismissed with prejudice, holding the contractors fell outside the TCPA's zone of interests.

Majority Opinion

Judge W. Fletcher wrote for the court.

Article III. Posting a number on Yelp or Facebook to attract customers is not express consent to texts from a company selling leads. Receiving even one unsolicited automated text is the harm Congress identified.

Section 227(b). The private right of action extends to any "person or entity." A business therefore falls within the statute's protection, and legislative history could not override unambiguous text.

Section 227(c). The Registry protections apply to "residential telephone subscribers." Relying on Federal Communications Commission (FCC) orders from 2003 and 2005, the court held that a registered cell phone used for both purposes is presumptively residential. Defendants may rebut the presumption after discovery. The court listed factors: how the number is held out to the public, how it is registered with the carrier, the extent of business use, who pays the bill and other factors bearing on how a reasonable observer would view the line.

Concurrence and Partial Dissent

Judge Bress concurred, rejecting the view that cell phone protection depends on where the phone is used, which he said the FCC had rejected.

Judge Ikuta dissented in part. She read the FCC's 2003 order as covering wireless phones only when used like a home landline, and argued that the majority created its own regulatory framework instead of deferring to the agency.

Significance After Loper Bright

Both the majority and the dissent framed their analyses around deference to the FCC under Chevron, which the Supreme Court overruled in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The majority said it would defer to future FCC interpretations consistent with the statute. Courts applying Chennette today will interpret "residential telephone subscriber" independently, and defendants may argue that the presumption and factors should be revisited on that basis. Until the Ninth Circuit addresses the question, the presumption remains circuit law.

Practical Considerations

1. Scraping numbers from business directories will not supply consent.
2. Small business owners using personal cell phones may bring Registry claims in the Ninth Circuit.
3. Defendants should start gathering evidence regarding the rebuttal factors in discovery.

This article provides general information and is not legal advice.

The Ninth Circuit's opinion in Chennette v. Porch.com is attached.