A recent decision from a federal district court in Virginia adds to the growing body of Telephone Consumer Protection Act (TCPA) litigation over whether its “Do Not Call” protections apply to marketing texts sent to cell phones. In McGonigle v. Dickey’s Barbecue Restaurants, Inc., No. 1:25-cv-01062, 2026 WL 2114507 (E.D. Va. July 22, 2026), the plaintiff alleged that he received unsolicited promotional text messages from Dickey’s after registering his cell phone number on the National Do Not Call Registry.
Dickey’s moved to dismiss, arguing that the TCPA’s Do Not Call provisions apply only to “residential” telephones and that a cell phone does not qualify. On July 22, the court rejected that argument, holding that a cell phone may plausibly be treated as residential for TCPA purposes when it is used primarily for personal, household purposes. The court also explained that this approach was consistent with the TCPA’s regulations and the FCC’s interpretation of them. In particular, the court noted that the relevant FCC regulations apply to entities making telephone solicitations or telemarketing calls to wireless telephones, and that the FCC has recognized that many consumers no longer maintain landlines and instead rely only on wireless service. The court quoted the FCC’s view that allowing wireless subscribers to receive the full range of TCPA protections is “more consistent with the overall intent of the TCPA.”
The court then held that the allegations in the plaintiff’s complaint were sufficient to avoid dismissal at the pleading stage. The complaint alleged that the plaintiff’s phone number was his only phone number, that he used it to communicate with friends and family, schedule personal appointments, and conduct household-related activities, and that he did not use it for business or commercial purposes. The court found those allegations sufficient to plead that the phone was used residentially.
However, Dickey’s did obtain a partial win. The court dismissed the request for treble damages, holding that the complaint did not include enough factual allegations that Dickey’s willfully, or knowingly, violated the TCPA. The court otherwise denied the motion to dismiss and declined to strike the class allegations at this early stage.
The decision addresses one recurring TCPA issue—whether a cell phone can be a residential telephone—but leaves another developing issue largely untouched: whether text messages qualify as “telephone calls” under the TCPA’s Do Not Call private right of action. For now, the case is a reminder that TCPA Do Not Call claims involving text messages may survive early motion practice when the complaint pleads personal, residential use of the number with enough detail.