Novia v. Mobiz Inc. et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
STEVEN NOVIA, individually and on )
behalf of all others similarly situated, )
)
Plaintiff, )
) Civil Action No. 25-CV-11036-AK
v. )
)
MOBIZ, INC. AND HARRIS )
BROTHERS OF MICHIGAN, INC., )
)
Defendants. )
)
MEMORANDUM AND ORDER ON
HARRIS BROTHERS’ MOTIONS TO DISMISS
ANGEL KELLEY, D.J.
Plaintiff Steven Novia (“Novia”) brings a class action suit against Defendants Mobiz, Inc.
(“Mobiz”)1 and Harris Brothers of Michigan, Inc. (“Harris Brothers”) for violations of the
Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394 (1991) (codified as 47
U.S.C. § 227) (“TCPA”) under the TCPA’s do-not-call rule (Count I) and “telemarketing Caller
ID” rule (Count II). [Dkt. 1 at 12-14]. Harris Brothers and Mobiz separately moved to dismiss.
[Dkts. 18; 28]. The Court previously denied Mobiz’ Motion to Dismiss. [Dkt. 35]. Harris
Brothers argued that this Court lacks personal jurisdiction over it and Novia failed to state a
claim for Count II against it. [Dkt. 29]. For the following reasons, Harris Brothers’ Motion to
Dismiss [Dkt. 28] is DENIED.
1 The Court has adopted Mobiz’ spelling of its own name, with a lower case “b,” rather than the capitalized “B”
utilized in Harris Brothers’ papers.
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I. BACKGROUND
As alleged in the Complaint, in February and March of 2025, Novia received four text
messages from Mobiz’ telephone number, which solicited Novia to purchase products from
Harris Brothers’ auctions. [Dkt. 1 ¶¶ 25-26, 30]. Novia received the text messages on his
residential telephone number, which begins with the Massachusetts area code “617.” [Id. ¶¶ 8,
19]. Novia resides in Massachusetts and received the texts while physically present in
Massachusetts. [Id. ¶¶ 4, 8]. Mobiz “actually sent the text messages at issue into this District.”
[Id. ¶ 8].
Harris Brothers is a Michigan-based corporation that owns an auction house in Byron,
Michigan. [Id. ¶ 6]. Harris Brothers hired Mobiz as a text message marketer to advertise their
goods and services. [Id. ¶¶ 42-43]. Harris Brothers drafted the content of the text messages and
provided Mobiz with the “specific criteria and demographics of individuals it desired to target
and required Mo[b]iz to adhere to those criteria.” [Id. ¶ 44]. The content of the text messages—
and goods being sold—changed: Harris Brothers was selling “Coins & Currency” on February
14, 2025, “Guitars . . . Toys & Antiques” on March 7, 2025, and were holding a “Comic Book
Auction” at some date thereafter. [Id. ¶¶ 25, 30]. Harris Brothers could have refrained from
using Mobiz’ services and could have chosen to terminate Mobiz’ services but did not. [Id. ¶¶ 41,
47-48].
On April 19, 2025, Novia filed suit against Mobiz and Harris Brothers alleging that they
violated two of TCPA’s implementing regulations: 47 C.F.R. § 64.1200(c)(2) by calling someone
who registered their phone on the National Do Not Call Registry (Count I) and 47 C.F.R.
§ 64.1601(e)(1) by failing to transmit caller ID information with the messages (Count II). [Dkt. 1
at 12-14]. Harris Brothers filed a Motion to Dismiss [Dkt. 28] raising Fed. R. Civ. P. 12(b)(2)
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and 12(b)(6) challenges regarding personal jurisdiction and failure to state a claim upon which
relief can be granted. [Dkt. 29 at 1].
II. DISCUSSION
A. Personal Jurisdiction
Harris Brothers challenges the exercise of personal jurisdiction over them. [Dkt. 29 at 1].
When determining whether a nonresident defendant is subject to its jurisdiction, a federal court
exercising personal jurisdiction conducts a two-step analysis. Lorelei Corp. v. Cnty. of
Guadalupe, 940 F.2d 717, 720 (1st Cir. 1991). First, courts must determine whether the state’s
long arm statute authorizes it to exercise personal jurisdiction over the foreign defendant. Id.
Second, if jurisdiction is authorized, courts must determine whether the exercise of personal
jurisdiction is consistent with due process under the Fourteenth Amendment. Id. (citing Whistler
Corp. v. Solar Elecs., Inc., 684 F. Supp. 1126, 1129-31 (D. Mass. 1988)).
“When a district court rules on a motion to dismiss for lack of personal jurisdiction
without holding an evidentiary hearing, as in this case, the ‘prima facie’ standard governs its
determination.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)
(citations omitted). The prima facie standard instructs this Court to “take specific facts
affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the
light most congenial to the plaintiff’s jurisdictional claim.” Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998) (citing Ticketmaster-New York, Inc. v. Alioto, 26
F.3d 201, 203 (1st Cir. 1994)). The party asserting personal jurisdiction, the plaintiff, bears the
burden of proving personal jurisdiction. Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008)
(quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.
2002)).
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1. Agency
Plaintiff alleges that the Court has personal jurisdiction over Harris Brothers by virtue of
Mobiz’ actions as Harris Brothers’ agent. “For purposes of personal jurisdiction, the actions of
an agent may be attributed to the principal.” Daynard, 290 F.3d at 55. An agency relationship for
purposes of personal jurisdiction is determined with reference to “[t]raditional common law
concepts.” Id. at 56. The “essential question . . . is whether the relationship between [the
defendants], however it is labeled, is sufficient to attribute [one defendant’s] in-state contacts
with [the other defendant] to exercise jurisdiction that comports with due process.” Weinberg v.
Grand Circle Travel, LCC, 891 F. Supp. 2d 228, 240 (D. Mass. 2012) (citations omitted). The
relationship is sufficient where there is “an actual or apparent agency relationship” between the
defendants. Id. at 240-41 (citing Daynard, 290 F.3d at 53-54). An actual agency relationship is
(1) “a product of ‘mutual consent, express or implied, that the agent is to act on behalf and for
the benefit of the principal,’” and is (2) “subject to the principal’s control.” CNE Direct, Inc. v.
Blackberry Corp., 821 F.3d 146, 150 (1st Cir. 2016) (quoting Theos & Sons, Inc. v. Mack Trucks,
Inc., 729 N.E.2d 1113, 1119 (Mass. 2000)).
Novia alleges that “Harris Brothers . . . contracted with Mo[b]iz to send text messages
into this District.” [Dkt. 1 ¶ 8]. An allegation that the principal and agent formed a contractual
agreement to the principal’s benefit demonstrates mutual consent. See Focused Impressions, Inc.
v. Sourcing Grp., LLC, No. 19-CV-11307, 2020 WL 1235366, at *4 (D. Mass. Mar. 13, 2020)
(finding the third-party complaint demonstrated mutual consent where it “allege[d] that [the
principal] entered into a contract with [the agent] for the express purpose of having [the agent]
serve as ‘a relationship manager.’”); Bud’s Goods & Provisions Corp. v. Doe, No. 22-CV-40002,
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2023 WL 2696587, at *3 (D. Mass. Mar. 29, 2023) (“[A] formal agency agreement can be
dispositive. . . .”).
Mobiz was subject to Harris Brothers’ control. In the TCPA context, control over the
agent exists where the principal “had the right to control the ‘manner and means’ of the calls,
including by developing a call script.” Doane v. Benefytt Techs., Inc., No. CV 22-10510, 2023
WL 2465628, at *9 (D. Mass. Mar. 10, 2023) (citing Toney v. Quality Res., Inc., 75 F. Supp. 3d
727, 743-44 (N.D. Ill. 2014)); see Johansen v. Liberty Mut. Grp., Inc., No. 15-CV-12920, 2017
WL 6045419, at *3 (D. Mass. Dec. 6, 2017). Harris Brothers developed the scripts for the text
messages and instructed Mobiz which demographics of individuals to contact, controlling both
who to contact (the manner) and how to contact them (the means). Harris Brothers also
exercised control in choosing to use Mobiz’ services and maintaining the authority to terminate
Mobiz should it have acted in a way that Harris Brothers disapproved of. Furthermore, Harris
Brothers’ control over Mobiz continued beyond the onset of the contract: from at least February
14 to March 7, the content of the text messages changed, indicating a continuation of control
extending weeks beyond the initial hiring. See Jackson v. Caribbean Cruise Line, Inc., 88 F.
Supp. 3d 129, 138-39 (E.D.N.Y. Feb. 17, 2015) (“[T]he power to give interim instructions
distinguishes principals in agency relationships from those who contract to receive services
provided by persons who are not agents.”) (citing Restatement (Third) of Agency § 1.01 cmt. f(1)
(Am. L. Inst. 2006)). Accordingly, Mobiz acted as an agent for Harris Brothers, and thus Mobiz’
contacts with Massachusetts can be imputed to Harris Brothers for the statutory and
constitutional analyses.
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2. Massachusetts Long Arm Statute
Turning to the personal jurisdiction analysis, under the Massachusetts long arm statute,
“[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as
to a cause of action in law or equity arising from the person’s (a) transacting any business in this
commonwealth” or “(c) causing tortious injury by an act or omission in this commonwealth.”
Mass. Gen. Laws ch. 223A, § 3(a), (c) (1985). This Court can exercise personal jurisdiction over
Harris Brothers under both subsections.
a. Transacting Business Subsection
Pursuant to Subsection (a), “the defendant must have transacted business in
Massachusetts” (the transacting business clause), and the plaintiff’s “claim must have arisen
from the transaction of business by the defendant” (the arisen from clause). Nowak v. Tak How
Invs., Ltd., 94 F.3d 708, 712 (1st Cir. 1996) (quoting Tatro v. Manor Care, Inc., 625 N.E.2d 549,
551 (Mass. 1994)). Courts construe the transacting business clause “broadly” and “look to
whether the defendant attempted to participate in the Commonwealth’s economic life.” QLS
Logistic Servs., LLC v. JAWS Assocs., LLC, No. 17-CV-11891, 2018 WL 5816342, at *3 (D.
Mass. Nov. 6, 2018) (quoting Geis v. Nestlé Waters N. Am., Inc., 321 F. Supp. 3d 230, 238 (D.
Mass. 2018)).
Under the transacting business clause, even a singular advertisement sent from the
defendant to the plaintiff suffices to meet Subsection (a) where it “target[s] directly a market in
Massachusetts” as “part of a national or regional advertising campaign.” Sigros v. Walt Disney
World Co., 129 F. Supp. 2d 56, 65 (D. Mass. 2001). Here, Mobiz sent four texts over the course
of two months, on Harris Brothers’ behalf, advertising their auction products to a Massachusetts
area code telephone number as part of an en masse campaign. That is all that is needed to meet
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Subsection (a)’s transacting business clause. See Tatro, 625 N.E.2d at 552 (finding that accepting
a hotel reservation from a Massachusetts resident by telephone was sufficient to meet
Massachusetts’ long arm statute because the singular contact was a part of a larger attempt to
acquire business in Massachusetts).
Under the arisen from clause, the claim must have been “made possible by, or lie[] in the
wake of, the transaction of business in the forum State.” Tatro, 625 N.E.2d at 553 (citations
omitted). In this context, a but-for analysis governs. Id. at 553-54. Here, but for Mobiz’ repeated
text messages sent to Novia, he would not have been harmed by the TCPA violation. See Sigros,
129 F. Supp. 2d at 63 (finding that the plaintiff’s “injury clearly ‘arose from’ [the defendant’s] act
of reserving a room at [a hotel] because ‘but for’ that contact she would not have been injured.”).
Accordingly, this Court can assert personal jurisdiction over Harris Brothers under Subsection
(a).
Harris Brothers argues that “the four messages received by Novia are insufficient to
constitute ‘transacting business’ in Massachusetts,” citing Droukas v. Divers Training Academy
Inc., 376 N.E.2d 548 (Mass. 1978) and Stanton v. AM Gen. Corp., 735 N.E.2d 407 (Mass. App.
Ct. 2000) as support. [Dkt. 29 at 4-5]. But Droukas dealt with one print advertisement in a
publication which was distributed to multiple states, including Massachusetts. 376 N.E.2d at
549-551. In contrast, the four text messages at issue in this suit were sent directly to Novia’s
phone in Massachusetts. Further, in Stanton, the plaintiff did not sufficiently allege that his
injuries arose from the defendant’s business in Massachusetts. 735 N.E.2d at 409. Whereas
Novia alleges that Harris Brothers’ intentional solicitation of Massachusetts business is the direct
cause of his injury. Accordingly, Harris Brothers’ counterargument is unavailing.
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b. Tortious Conduct Subsection
This Court can also exercise personal jurisdiction under Subsection (c). Under
Subsection (c), a Massachusetts “court may exercise personal jurisdiction over a person, who
acts . . . by an agent, as to a cause of action in law or equity arising from the person’s . . . (c)
causing tortious injury by an act or omission in this commonwealth.” Mass. Gen. Laws ch. 223A,
§ 3(c) (1985). To meet Subsection (c), “the act or omission must be intentional, rather than
negligent, and must be targeted at, but not necessarily occur in, Massachusetts.” Doane v. Python
Leads, LLC, No. 24-CV-12947, 2025 WL 3485569, at *3 (D. Mass. Dec. 4, 2025) (citing Lyons
v. Duncan, 81 Mass. App. Ct. 766, 770 (2012)). A TCPA violation constitutes an injury in the
state where the plaintiff received the text or call. See, e.g., Russell v. 29 Prime, Inc., No. 13-CV-
12814, 2014 WL 3510291, at *1, 3 (D. Mass. July 10, 2014) (finding that the defendant “need
not be present in Massachusetts to . . . cause injury therein” where the plaintiff, a Massachusetts
resident, received several solicitations from autodialers while in Massachusetts).
Novia has sufficiently demonstrated that Harris Brothers intentionally caused tortious
injury in Massachusetts. Harris Brothers acted intentionally: they hired Mobiz to send the text
messages, drafted the messages themselves, and informed Mobiz whom to contact based upon
particular demographics, which plausibly included geographic requirements. Harris Brothers’
intentional conduct targeted Massachusetts because, through their agent, Harris Brothers
contacted a number with a Massachusetts area code. Further, Novia’s alleged injury occurred in
Massachusetts because Novia received the texts while present in Massachusetts. Therefore,
under both Subsection (a) and (c), this Court satisfies Massachusetts’ long arm statute
requirements for personal jurisdiction.
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3. Due Process
Turning to the constitutional analysis, a court may assert specific jurisdiction over a
defendant where the cause of action “relates sufficiently to, or arises from” the defendant’s
contacts with the forum state. Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 288
(1st Cir. 1999) (citations omitted). The specific jurisdiction analysis addresses three elements:
(1) relatedness, (2) purposeful availment, and (3) reasonableness. See Warren Env’t, Inc. v.
Source One Env’t, Ltd., No. 18-CV-11513, 2020 WL 1974256, at *3 (D. Mass. Apr. 24, 2020)
(citing Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir.
2016)).
a. Relatedness
The relatedness prong requires that the “suit arise out of, or be related to” the defendant’s
contacts in the forum state to “ensure[] that the element of causation remains in the forefront.”
Back Bay Farm, LLC. v. Collucio, 230 F. Supp. 2d 176, 186 (D. Mass. 2002) (quoting
Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 206-07 (1st Cir. 1994)). This requirement is
assessed under “a flexible, relaxed standard.” Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir. 1994)
(citing Ticketmaster, 26 F.3d at 207)).
Harris Brothers’ contacts in Massachusetts clearly relate to this suit. In the TCPA
context, the relatedness requirement is met where a plaintiff’s claims arise from a defendant’s
unsolicited calls to a Massachusetts resident’s telephone number. See Jones v. Revenue
Assistance Program, No. 15-CV-14017, 2016 WL 3919843, at *5 (D. Mass. July 14, 2016);
Russell, 2014 WL 3510291, at *2 (“[The defendant’s] mass solicitations to [the] plaintiff and
other putative class members arose directly from that ongoing sales effort.”). Novia challenges
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Mobiz’ unsolicited calls to him in Massachusetts, for Harris Brothers, allegedly in violation of
the TCPA. Accordingly, relatedness is met.
b. Purposeful Availment
Under the purposeful availment prong, courts assess whether the defendant intentionally
and willingly directed their activities toward the forum, such that they should have expected to
be subject to the forum court’s jurisdiction because of their contacts and the benefits they had
received. Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 32 (1st Cir. 2010) (citations omitted). The
exercise of personal jurisdiction is proper where a defendant “initiated the transaction” with the
plaintiff and “contemplated that the plaintiff would render services in the forum.” Daynard, 290
F.3d at 62 (citation omitted). In the TCPA context, “repeated contacts targeted at Massachusetts
residents, including calls alleged to be violations of the TCPA, can be considered purposeful
availment by a defendant.”2 Traylor v. Livefree Emergency Response Inc., No. 24-CV-10329,
2024 WL 4943042, at *6 (D. Mass. Dec. 3, 2024); see McDermet v. Porch.com, Inc., No. 19-CV-
10284, 2019 WL 1619867, at *2 (D. Mass. Apr. 16, 2019) (“[T]he Complaint alleges that [the
defendant] or its agents called [the plaintiff’s] mobile and home phone numbers that have a
Massachusetts area code (978), an allegation sufficient to establish that they purposefully availed
themselves of the privilege of doing business in the Commonwealth.” (citations omitted)).
Given Harris Brothers’ limited contacts with Massachusetts, this poses a close case.
Nonetheless, Harris Brothers, through their agent, repeatedly texted Novia at a number with a
Massachusetts area code. Thus, Harris Brothers targeted a Massachusetts resident and plausibly
contemplated that Novia would be a customer in Massachusetts, purposefully availing itself of
the privileges of conducting activities in Massachusetts.
2 Text messages constitute calls under the TCPA. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016).
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Harris Brothers counterargues that “Novia d[id] not allege . . . that Harris Brothers
directed Mo[b]iz to place calls to or to target Massachusetts residents or Massachusetts area
codes.” [Dkt. 29 at 7-8]. However, Novia alleged that Harris Brothers provided Mobiz with
“specific criteria and demographics of individuals it desired to target and required Mo[b]iz to
adhere to those criteria.” [Dkt. 1 ¶ 44]. Reading the Complaint in Novia’s favor, these criteria
could plausibly include a geographic criterion. Therefore, Harris Brothers purposefully availed
itself of the privileges of conducting activities in Massachusetts.
c. Reasonableness
With the relatedness and purposeful availment prongs met, the Court must confirm that
its exercise of personal jurisdiction over Harris Brothers would not be “fundamentally unfair”
under the Fourteenth Amendment’s Due Process Clause. Ticketmaster, 26 F.3d at 210. The
reasonableness prong is a sliding scale: where the relatedness and purposeful availment prongs
are easily met, less weight is given to the reasonableness requirement. See id. When assessing
reasonableness, courts weigh the Gestalt factors: (1) the burden of appearance for the defendant,
(2) the forum state’s interest in adjudication, (3) the plaintiff’s interest in acquiring convenient
relief, (4) the administration of justice, and (5) relevant policy arguments. See Sawtelle v. Farrell,
70 F.3d 1381, 1394 (1st Cir. 1995) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477
(1985)).
First, no facts in the record indicate that the burden of appearance for Harris Brothers
would be particularly high, weighing in favor of reasonableness. See Nowak, 94 F.3d at 711
(holding the first Gestalt factor weighed in favor of reasonableness where the defendant did not
demonstrate that “exercise of jurisdiction in the present circumstances is onerous in a special,
unusual, or other constitutionally significant way.”); Pritzker, 42 F.3d at 64 (“[W]e think this
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[first] factor is only meaningful where a party can demonstrate some kind of special or unusual
burden.” (citing Ticketmaster, 26 F.3d at 210)).
The second factor also weighs in favor of personal jurisdiction because the TCPA
violation occurred in Massachusetts. Compare Ticketmaster, 26 F.3d at 211 (“The forum state
has a demonstrable interest in exercising jurisdiction over one who causes tortious injury within
its borders.” (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984))), and Python,
2025 WL 3485569, at *7 (“Massachusetts has a manifest interest in providing its residents with a
convenient forum for redressing injuries inflicted by out-of-state actors.”) (internal quotation
marks omitted), with Sawtelle, 70 F.3d at 1395 (“New Hampshire has a far less compelling
interest in the prosecution of a legal malpractice suit stemming from an injury that occurred
outside of its borders.”).
The third factor weighs in Novia’s favor because he has an interest in requiring
convenient relief in the state where he currently resides. See Sawtelle, 70 F.3d at 1395 (“This
Court has repeatedly observed that a plaintiff’s choice of forum must be accorded a degree of
deference with respect to the issue of its own convenience.” (citations omitted)); Russell, 2014
WL 3510291, at *4 (“Such deference is particularly strong where . . . [the] plaintiff is a forum
resident.”).
“As in most litigation among private parties, the [fourth factor] in this case is a wash.”
Russell, 2014 WL 3510291, at *4 (citing Sawtelle, 70 F.3d at 1395); see Nowak, 94 F.3d at 711
(stating the administration of justice factor is usually “a wash”(citations omitted)). Finally,
“[u]nder the [fifth] factor, Massachusetts has a clear interest in providing a convenient forum to
residents who are harmed by out-of-forum actors.” Russell, 2014 WL 3510291, at *4 (citing
Nowak, 94 F.3d at 719). Because the reasonableness factors weigh in Novia’s favor, Novia’s
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claims are related to Harris Brothers’ actions, and Harris Brothers purposefully availed itself to
Massachusetts, exercising personal jurisdiction over Harris Brothers comports with due process
requirements.
B. Failure to State a Claim: Caller ID Requirement
Regarding the alleged violation of the caller ID regulations, Novia argues that Section
64.1601(e)’s caller ID requirement for all telemarketing calls was promulgated pursuant to
Section 227(c), which contains a private right of action. Meanwhile, Harris Brothers argues it
was promulgated pursuant to Section 227(d), which does not contain a private right of action.
[Dkt. 29 at 10]. Harris Brothers’ claims require assessment under the Rule 12(b)(6) standard.
See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 56 (1st Cir. 2002). Under that standard,
courts accept the plaintiff’s factual allegations as true, and determine whether the facts permit a
reasonable inference that the defendant is liable for the alleged misconduct. Haley v. City of
Boston, 657 F.3d 39, 46 (1st Cir. 2011).
“[P]rivate rights of action to enforce federal law must be created by Congress.”
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Where a statute contains a private right of
action, its implementing regulations may be enforced pursuant to that private right of action. Id.
at 284 (“A Congress that intends the statute to be enforced through a private cause of action
intends the authoritative interpretation of the statute to be so enforced as well.”). “The question
[of] whether a statute creates a cause of action” is “a matter of statutory construction.”
Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979). As with interpreting any
statutory provision, the inquiry must “begin with the language of the statute itself.” Id. at 16.
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1. Textual Analysis
Section 227(c) authorizes the FCC to promulgate rules “concerning the need to protect
residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to
which they object.” 47 U.S.C. § 227(c)(1). This includes “evaluat[ing] . . . methods and
procedures . . . including . . . telephone network technologies . . . for their effectiveness in
protecting such privacy rights.” 47 U.S.C. § 227(c)(1)(A). In addition, Section 227(c) enables
regulations “to implement methods and procedures for protecting the privacy rights” and
authorized the creation of the Do-Not-Call registry and database. 47 U.S.C. § 227(c)(2)-(4).
Meanwhile, Section 227(d) authorizes rules related to “technical and procedural” standards for
fax machines, automatic telephone dialing systems, and “systems that are used to transmit any
artificial or prerecorded voice message.” 47 U.S.C. § 227(d)(2)-(3). By the plain text of the
TCPA and the Code of Federal Regulations, Section 64.1601(e) was promulgated by Section
227(c).
Section 64.1601(e)’s caller ID requirement is a “telephone network technolog[y].” 47
U.S.C. § 227(c)(1)(A). See Dobronski v. Selectquote Ins. Servs., 773 F. Supp. 3d 373, 377 (E.D.
Mich. 2025) (“Intuitively, a caller ID requirement seems to use a telephone network technology
to help protect privacy rights.”); Dobronski v. Ins. Supermarket Inc., No. 23-CV-10149, 2025
WL 3121332, at *14 (E.D. Mich. Aug. 1, 2025). Further, the caller ID rule protects individuals’
privacy rights by allowing them to screen calls to “avoid receiving telephone solicitations to
which they object.” 47 U.S.C. § 227(c)(1). Because Section 64.1601(e)’s caller ID requirement
addresses the privacy-protecting goal of Section 227(c) through one of the means permitted by
Section 227(c), it was implemented pursuant to Section 227(c). See Selectquote, 773 F. Supp. 3d
at 377; Ins. Supermarket Inc., 2025 WL 3121332, at *14. Cf. Rosenberg v. LoanDepot.com
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LLC, 435 F. Supp. 3d 308, 324-25 (D. Mass. 2020) (“§ 64.1200(d), like § 227(c), is concerned
principally with the protection of individual privacy rights,” and thus “§ 64.1200(d) was
promulgated under § 227(c) and contains a private right of action.”); Menin v. Star Markets Co.,
No. 23-CV-11918, 2024 WL 4123522, at *2 (D. Mass. Sep. 9, 2024) (same).
Additionally, the expansive language of Section 64.1601(e) pairs with Section 227(c)’s
broad purpose to protect residential telephone subscribers’ privacy rights. See Selectquote, 773 F.
Supp. 3d at 376 (“The last remaining option—and the only subsection with the breadth of scope
to cover § 64.1601(e)—is § 227(c).”); Worsham v. LifeStation, Inc., No. 661, Sep. Term, 2020,
2021 WL 5358876, at *17 (Md. Ct. Spec. App. Nov. 17, 2021) (“[T]o the extent the express
terms of § 64.1601(e)(1) apply to live telemarketing calls, they would exceed the scope of
regulation authorized by § 227(d), but not the scope of § 227(c).”); Newell v. JR Cap., LLC, 791
F. Supp. 3d 571, 579 (E.D. Pa. 2025). Section 64.1601(e) fits within Section 227(c)’s scope and
addresses its purpose through one of its enumerated means. Accordingly, Section 64.1601(e)
was promulgated pursuant to Section 227(c), and Novia has a cause of action to enforce Section
64.1601(e). See also Barton v. Am. Fam. Life Assurance Co., No. 25-CV-05671, 2026 WL
177598, at *7 (W.D. Wash. Jan. 22, 2026) (agreeing with the reasoning in Newell and
Selectquote); Barton v. Bright Solar Mktg. LLC, No. 25-CV-05310, 2025 WL 2880136, at *6
(W.D. Wash. Oct. 9, 2025) (same).
In contrast, the scope of Section 227(d) differs from Section 64.1601(e)’s reach. Section
227(d) permits regulations of specific enumerated technologies. 47 U.S.C. § 227(d)(1)-(3). On
the other hand, Section 64.1601(e) regulates “[a]ny person or entity that engages in
telemarketing” and does not mention any of the technologies at issue in Section 227(d). 47
C.F.R. § 64.1601(e); see Selectquote, 773 F. Supp. 3d at 376 (“Section [] 64.1601(e) imposes a
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caller ID requirement on all telemarketing calls.”). Given the differing scopes of Section 227(d)
and Section 64.1601(e), “[i]t is difficult to discern how § 64.1601(e) could have been lawfully
promulgated under § 227(d) without exceeding the FCC’s delegated authority.” Newell, 791 F.
Supp. 3d at 579; see Selectquote, 773 F. Supp. 3d at 376 (“It is thus unclear from where in
[Section 227(b) and 227(d)] the FCC gained authority to create a blanket requirement applying to
all calls, including those that do not relate to automatic dialing, fax machines, or artificial or
prerecorded messages.”).
Although Section 64.1601(e)’s caller ID rule is a technical requirement and Section
227(d) calls for the creation of “technical and procedural” standards, Section 64.1601(e) was not
promulgated pursuant to Section 227(d). Section 227(c) does not specify whether its
implementing regulations must be technical or not. 47 U.S.C. § 227(c)(1). Therefore, the FCC
was within its authority to impose the technical requirement of Section 64.1601(e). See Newell,
791 F. Supp. 3d at 579 (“[C]aller ID fits into § 227(c), even if (c) does not mandate that the FCC
adopt technological methods and authorizes non-technological methods and procedures as
well.”).
Harris Brothers argues that the Court should not infer a private right of action where
Congress has already created enumerated causes of action in neighboring subsections. [Dkt. 29 at
10-11]. Contrary to Harris Brothers’ claim, the Court is not inferring a private right of action:
Congress created an express cause of action under Section 227(c) and Section 227(c)’s
implementing regulation may be enforced pursuant to that cause of action. Sandoval, 532 U.S. at
284. The key inquiry here is the scope of the explicit cause of action. Selectquote, 773 F. Supp.
3d at 380 (“[The question] is instead whether, as a matter of textual interpretation, § 64.1601(e)
falls within the scope of an express cause of action that Congress has already created.”); Newell,
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791 F. Supp. 3d at 580 (“Congress specifically authorized the FCC to issue regulations, and
provided for a private right of action for all regulations issued under § 227(c).”). As explained
above, Section 64.1601(e) falls within Section 227(c)’s scope. Harris Brothers’ counterargument
accordingly fails.
2. Administrative History
Although not necessary to the Court’s conclusion, the administrative history supports this
Court’s reading of the TCPA and its implementing regulation’s text. See Obduskey v. McCarthy
& Holthus LLP, 586 U.S. 466, 477 (2019) (“[F]or those of us who use legislative history to help
interpret statutes, the history of the [Fair Debt Collection Practices Act] supports our reading.”).
In an early rulemaking proceeding, the FCC “considered whether to require telemarketers to use
a special area code or telephone number prefix that would allow consumers to block unwanted
telephone solicitations using a caller identification (caller ID) service.” In re Rules & Reguls.
Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14118–21 (2003); see
Selectquote, 773 F. Supp. 3d at 377 (citing In the Matter of Rules & Reguls. Implementing the
Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8758 (1992)). When evaluating those
alternatives, “the FCC identified the lack of widespread caller ID as a barrier to cost-effective
network technology implementation.” Selectquote, 773 F. Supp. 3d at 377.
A decade later, the FCC revisited the issue and “sought comment on whether network
technologies have been developed over the last decade that may allow consumers to avoid
receiving unwanted telephone solicitations.” In re Rules & Reguls. Implementing the Tel.
Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14118 (2003). Specifically, the FCC
requested comments on “whether to require telemarketers to transmit the name and telephone
number of the calling party, when possible, or prohibit them from blocking or altering the
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transmission of such information.” Id. Following the notice and comment process, the FCC
promulgated Section 64.1601(e), which requires “all sellers and telemarketers to transmit caller
ID information, regardless of their calling systems.” Id. at 14121; 47 C.F.R. 64.1601(e).
FCC’s reference to “network technologies” is plainly a reference to the requirements of
Section 227(c). See 47 U.S.C. § 227(c) (the FCC shall “compare and evaluate alternative
methods and procedures (including . . . telephone network technologies . . . ) for their
effectiveness in protecting such privacy rights.”). The FCC’s specific request for comment on
Caller ID requirements as one possible “network technology” makes apparent that the FCC
considered Caller ID requirements a “network technology” under Section 227(c). See Newell,
791 F. Supp. 3d at 579 (“[T]he administrative record establishes that the FCC viewed caller ID as
a ‘network technology’ that Congress required the FCC to evaluate as a method and procedure to
protect consumer privacy under § 227(c).”). Thus, the administrative history of Section
64.1601(e) supports our textual analysis.
In support of their argument, Harris Brothers string-cites a series of out-of-circuit cases,
without further explanation, that held there was no private right of action to enforce Section
64.1601(e). [Dkt. 29 at 9-10]. Granted, there is a split in authority on this issue. Compare
Worsham v. Travel Options, Inc., No. 14-CV-2749, 2016 WL 4592373, at *4, 7 (D. Md. Sep. 2,
2016), and Dobronski v. Tobias & Assocs., No. 23-CV-10331, 2023 WL 7005844, at *7-8 (E.D.
Mich. Sept. 25, 2023), and Dobronski v. SunPath Ltd., No. 19-CV-13094, 2020 WL 8840311, at
*6-7 (E.D. Mich. July 27, 2020), with Newell, 791 F. Supp. 3d at 582, and Selectquote, 773 F.
Supp. 3d at 380. However, upon review of Defendants’ persuasive authority, the Court remains
unpersuaded.
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The only case that Harris Brothers addresses in detail is Travel Options. In that case, the
court held that Section 64.1601(e) was not promulgated pursuant to Section 227(c) or its
neighbor Section 227(b) because “neither . . . requires the use of such technology to accomplish
their respective purposes.” Travel Options, 2016 WL 4592373, at *4. The Court has already
rejected this argument above. Travel Options also reasoned that “the FCC’s rule in § 64.1601(e)
appears to support consumers’ enforcement efforts under the TCPA’s subsection c, rather than
to create a separate mechanism upon which a consumer can make an actionable claim.” Id.
However, this argument conflicts with Supreme Court precedent, which permits the private
enforcement of regulations when the regulation is promulgated pursuant to—and thus in support
of—a statute with a cause of action. Furthermore, Section 64.1601(e) merely supporting Section
227(c)’s purpose of protecting telephone subscribers’ privacy rights does not infer that it was not
promulgated by Section 227(c). Selectquote, 773 F. Supp. 3d at 378 (“[I]t does not follow that
the FCC could not promulgate technology-focused rules (like a caller-ID requirement) under
§ 227(c)’s ‘telephone network technologies’ language merely because it could also protect
subscriber privacy rights in other, non-technological ways.”).
Accordingly, the Court rejects Harris Brothers’ arguments. The TCPA and its regulations’
text and administrative history support the Court’s holding that Section 64.1601(e) was
promulgated pursuant to Section 227(c), which contains a private right of action.
III. CONCLUSION
For the foregoing reasons, Harris Brothers’ Motion to Dismiss [Dkt. 28] is DENIED.
SO ORDERED.
Dated: March 18, 2026 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
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