Starling v. HomeOver General Contractors: Booking a Roof Inspection Defeats a Do Not Call Claim, but Caller ID and Texas Registration Claims Proceed

The Calls

The plaintiff alleged that Storm Leads Innovation, a lead generator that hasn't appeared, called her cell phone and landline for HomeOver from November 2021 to June 2022. Both had been on the National Do Not Call Registry for years. On the first call, she booked a roof inspection. A HomeOver employee called the next day to confirm and she said she'd call back to reschedule. She emailed the contractor's owner about "illegal calls," and he pointed her to Storm Leads. She booked again in January and February 2022. In March, she asked to be put on the internal do-not-call list. The calls to her cell phone stopped. A June call to her landline came from "TM Roofing."

Vicarious Liability by Ratification

HomeOver argued that it made none of the calls and that Storm Leads wasn't its agent. The court disagreed. The complaint alleged that Storm Leads screened leads and passed them along, that HomeOver followed up to schedule inspections, and that the owner learned of the calls and HomeOver kept trying to book her afterward. That pleaded full knowledge and retention of benefits.

Count I: The Appointment Problem

A "telephone solicitation" excludes calls to a person with an established business relationship, which can arise from a voluntary two-way communication based on a transaction. The court held that booking an appointment established a relationship. Her email about the calls didn't say she ended it, and she booked again on the next call. The Do Not Call claim was dismissed without prejudice.

Count II: Caller ID Has a Private Right of Action

The Federal Communications Commission's caller ID rule, 47 C.F.R. § 64.1601(e)(1), requires telemarketers to transmit caller identification information. A claim is privately enforceable only if the rule was adopted under Section 227(c), not Section 227(d). Agreeing with recent decisions, the court traced the rule to Section 227(c). It rejected the reasoning in contrary decisions because Section 227(d) only covers fax, autodialer and artificial voice calls. Because "telemarketing" has no business-relationship exception, her appointments didn't defeat this claim.

Count III: No Call After the Request

The internal do-not-call claim failed. After the March request, no call went to her cell phone. The June "TM Roofing" landline calls weren't plausibly tied to HomeOver, since the callback number belonged to Storm Leads.

Count IV: Texas Registration

Texas Business and Commerce Code § 302.101 requires sellers to register before soliciting Texas purchasers. The Texas definition of "solicitation" has no business-relationship exception, and the North Texas area codes plus HomeOver's Carrollton base were enough to plead that she was in Texas. The claim survived.

Observations

• Booking appointments can create a business relationship that defeats a Do Not Call claim.
• Caller ID claims are gaining ground. More courts now treat Section 64.1601(e) as privately enforceable.
• State registration statutes reach further. Texas's definition is broader than the federal one.
• Knowledge supports ratification. A complaint to the owner followed by more calls could plausibly demonstrate knowledge.

Read the Eastern District of Texas memorandum opinion.