Unreported / Non-Citable
Background
Ronald Cupp, proceeding pro se, sued mortgage broker Peter Guy Kerston under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), alleging six sales calls to his cell phone on February 20, 2025, made using an automatic telephone dialing system (ATDS) or artificial/prerecorded voice. The parties consented to a bench trial before Magistrate Judge Laurel Beeler. The court converted the bench trial into a summary-judgment procedure, directing the parties to file sworn declarations addressing nine topics, including how the calls were placed, what was said, and whether Cupp's number was on the national do-not-call registry. Cupp filed declarations stating Kerston called four times in 32 minutes from his personal cell phone, spoke in his own live voice, and continued calling after Cupp told him to stop during the first call.
Cupp's number had been on the do-not-call registry since February 2022. Kerston, who filed late due to illness, answered interrogatories under oath stating he used only his personal cell phone, dialed manually, and had no autodialer. He did not dispute the do-not-call registry status, the request to stop, or the sales purpose of the calls. The court also addressed Cupp's requests for admission, which Kerston failed to answer timely.
The Court’s Holding
The court granted summary judgment to Kerston on the § 227(b) ATDS claim because the undisputed evidence showed Kerston dialed manually from his cell phone and used his live voice; no reasonable factfinder could find an ATDS or prerecorded voice. The court permitted Kerston to withdraw his deemed admissions under Rule 36(b), finding the admissions would decide the case on a fiction, Cupp was not prejudiced, and the remaining admissions were either established by evidence or irrelevant. The court then construed Cupp's complaint and declarations as asserting a do-not-call claim under § 227(c)(5) and 47 C.F.R. § 64.1200(c)(2), which the October 5 order had anticipated.
The court granted summary judgment to Cupp on that claim, finding four calls to a registered residential cell phone for mortgage sales, three after a clear request to stop, with no established business relationship, written consent, or do-not-call procedures. The court awarded $100 for each of the three post-request calls and $50 for the first call ($350 total), plus $605 in taxable costs. The court declined to treble damages. Regarding the related case against The Mortgage Network Wholesale Lender, LLC, the court will issue a separate report and recommendation denying default judgment because the ATDS claim failed on the merits against Kerston and the do-not-call claim was not pleaded against the company.
Key Takeaways
- A TCPA § 227(b) claim requires evidence of an automatic telephone dialing system (using a random or sequential number generator) or an artificial/prerecorded voice; hand-dialed calls from a personal cell phone using live voice do not satisfy this element, regardless of call frequency or sales purpose.
- Courts may permit withdrawal of deemed admissions under Rule 36(b) when the admission is contradicted by the record, the requesting party is not prejudiced in proving their case, and withdrawal promotes a decision on the merits.
- A pro se plaintiff's complaint, liberally construed with later sworn declarations, can support a do-not-call claim under § 227(c)(5) even if the complaint omitted registry registration and residential use, provided the defendant had notice and opportunity to respond.
- A subscriber's request to stop calls during a call terminates any established business relationship exception under 47 C.F.R. § 64.1200(f)(5)(i), making subsequent calls violations even if the first call was permissible.
- Damages under § 227(c)(5) are discretionary up to $500 per violation; courts may award lower amounts based on violation scale, actual harm, intrusion severity, parties' financial circumstances, and deterrence needs, and may decline treble damages even for knowing violations.
Why It Matters
This decision illustrates the critical distinction between the TCPA's ATDS provision (§ 227(b)) and its do-not-call provision (§ 227(c)). While the plaintiff failed on the ATDS claim because the defendant manually dialed from a personal phone, the court independently recognized and adjudicated a do-not-call claim based on the same factual record. The ruling reinforces that registration on the national do-not-call registry creates a presumption of residential use for cell phones (citing Chennette v.
Porch.com), that a verbal stop-call request immediately ends any established business relationship, and that individual brokers without written do-not-call procedures cannot claim the safe harbor for errors. The court's discretionary damages approach—awarding $100 for post-request calls and $50 for the initial call—provides a calibrated model for small-scale violations by individual actors. The decision also demonstrates case-management techniques for pro se litigation: converting a bench trial to a summary-judgment record, directing targeted declarations, and construing pleadings liberally to reach the merits.