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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY BLEVINS, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

Case No.: 2:18-cv-00377

JUDGE GEORGE SMITH

MAGISTRATE JUDGE ELIZABETH 

DEAVERS

PREMIUM MERCHANT FUNDING ONE, 

LLC,

Defendant,

MEMORANDUM IN OPPOSITION OF DEFENDANT PREMIUM MERCHANT 

FUNDING ONE, LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS

Defendant Premium Merchant Funding One, LLC (“Premium”) does not dispute, for 

purposes of its Motion for Judgment on the Pleadings, that it made calls to Plaintiff Jeffrey 

Blevins (“Plaintiff”). Nor does it dispute that Plaintiff’s cellular telephone number is on the 

National Do Not Call Registry (“NDNC”). Instead, Premium’s only argument is that the 

telephone number in question that was placed on the NDNC was done so improperly, because

the telephone number is used by Plaintiff for “business purposes,” and is thus not a “residential 

telephone number” for NDNC purposes. (ECF #14, at 1).

Plaintiff does use his cellular telephone in connection with his small business, Interior 

Creations. However, like many small business owners, Plaintiff has only a single cellular 

telephone (and telephone number) that is used for all of his business and personal purposes. In 

such a scenario, the privacy goals of protecting consumers from unwanted intrusions trumps any

commercial interests implicated by business-to-business communications. Indeed, the Federal 

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Communications Commission explicitly rejected an attempt by telemarketing trade organizations 

to grant a blanket NDNC exemption to calls made to “home-based businesses.” Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991 (“2005 TCPA 

Rules”), 70 Fed. Reg. 19,330, 19,331 (April 13, 2005). Interior Creations is a “home-based 

business,” and thus Mr. Blevins’s cell number is not exempt from the reach of the NDNC rules.

At a minimum, the Court should deny the Motion for Judgment on the Pleadings pending 

a full development of the factual record regarding the use of the cellular telephone by Plaintiff. 

This was the route taken by the court in the only on-point authority cited by Premium, which 

denied a motion to dismiss before ultimately granting summary judgment on the full record. 

Even in the light of the authorities most favorable to Premium, dismissing the case at this time 

would be inappropriate, and Premium’s Motion should be denied.

FACTUAL BACKGROUND

Plaintiff Jeffrey Blevins is the sole proprietor of Interior Creations. Ex. A, Declaration of 

Jeffrey Blevins, at ¶ 2; see also ECF #12-1. Interior Creations’ principle place of business, as 

listed on Interior Creations’ website, is 8045 Tippet Road, New Albany, OH. Id. at ¶ 3. This 

location is also Plaintiff’s personal residence. Id. at ¶ 3. The cellular telephone number listed on 

Interior Creations’ website is 614-989-****. Id. at ¶ 4; see also ECF #12-1. This is Plaintiff’s 

only telephone number of any kind, and he uses it to for all of his calls. Id. at ¶ 5. 

ARGUMENT

“The Federal Rules of Civil Procedure provide that, ‘after the pleadings are closed—but 

early enough not to delay trial—a party may move for judgment on the pleadings.’” Williamson 

v. Recovery Ltd. Partnership, No. 2:06-cv-292, 2010 WL 3769136, at * 2 (S.D.Ohio Sept. 24, 

2010) (quoting Fed. R. Civ. P. 12(c)). “A motion for judgment on the pleadings under Rule 

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12(c) is subject to the same standard of review as a Rule 12(b)(6) motion.” Id. (citing 

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir.

2005)). As such, in considering the motion, the Court “must construe the complaint in a light 

most favorable to plaintiffs, accept all well-pled factual allegations as true, and determine 

whether plaintiffs undoubtedly can prove no set of facts in support of those allegations that 

would entitle them relief.” Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir.

2008) (internal citations omitted).

“The TCPA authorized the Federal Communications Commission (FCC) to promulgate 

regulations ‘to protect residential telephone subscriber's privacy rights to avoid receiving 

telephone solicitations to which they object.’” Baker v. Certified Payment Processing, LP, No. 

16-cv-03002, 2016 WL 3360464, at * 2 (C.D. Ill. June 1, 2016) (quoting 47 U.S.C. § 227(c)). 

“The Do Not Call list makes it actionable to ‘initiate any telephone solicitation to ... [a] 

residential telephone subscriber who has registered his or her telephone number on the national 

do-not-call registry of persons who do not wish to receive telephone solicitations that is 

maintained by the Federal Government.’” Clauss v. Legend Securities, Inc., No. 4:13-cv-00381, 

2014 WL 10007080, at * 2 (S.D. Iowa Sept. 8, 2014) (quoting 47 C.F.R. § 64.1200(c)(2)). “In 

creating, and later editing, the Do Not Call List regulations, the FCC purposefully did not 

uniformly exempt ‘home-based businesses’ from the Do Not Call Rules.” Id. (citing 2005 TCPA 

Rules). “A person who receives more than one telephone call within any 12-month period by an 

entity in violation of the regulations may bring a private cause of action.” Baker, 2016 WL 

3360464, at * 2 (citing 47 U.S.C. § 227(c)(5)).

Plaintiff is engaged in running a home-based business. Interior Creations’ website lists 

the Tippet Road address as the “Shop Location”; this same Tippet Road address is Plaintiff’s 

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residence. In both the professional and personal context, there is only a single telephone number 

used by Plaintiff—the cellular telephone number at issue in this case.

Premium’s position is that “even if Plaintiff claims that his number is registered as 

residential, such claim is inconsequential [as] Plaintiff holds his telephone number out to the 

general public as a business line.” ECF #14, at 5-6. This bright-line position is wholly 

inconsistent with the FCC’s guidance, which explicitly declined to exclude business numbers 

that were also assigned to a home from the scope of the NDNC regulations. See 2005 TCPA 

Rules, 20 FCC Rcd. 3788, 3793, ¶ 14 (“We also decline to exempt from the do-not-call rules 

those calls made to ‘home-based businesses’; rather, we will review such calls as they are 

brought to our attention to determine whether or not the call was made to a residential 

subscriber.”). It is simply not the case that a number that is “held out as a business line,” in any 

context, no matter what, is per se exempt from the scope of the FCC’s NDNC rules.

Several courts to consider the home business scenario have found that a plaintiff can 

make out NDNC claims when the telephone number is associated with a business use. Baker 

involved a cellular telephone number that was associated with a home-based carpet cleaning 

business and prominently displayed on promotional materials and company websites. 2016 WL 

3360464, at * 2. Citing the 2005 TCPA Rules, the court found that, at least at the motion to 

dismiss stage, the cellular telephone number was a residential number for NDNC purposes. Id. 

at * 3. Likewise, in Clauss, the telephone number at issue was associated both with plaintiff’s 

law practice and a separately incorporated business. 2014 WL 10007080, at * 2. Noting that the 

address associated with the business and legal filings was also plaintiff’s home, the court in 

Clauss denied summary judgment on the grounds that “based on the evidence before the Court, a 

jury could reasonably conclude that Plaintiff's phone number was simultaneously a residential 

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and business phone, or the number for a home-based business.” Id. at *3. Finally, in Southwell 

v. Mortgage Investors Corp. of Ohio, Inc., the court rejected the claim that alleged uses of a 

cellular telephone number in connection with business activities was sufficient to upset the 

conclusion that the plaintiff “is a ‘residential telephone subscriber’ under the TCPA.” No. C13-

1289 MJP, 2014 WL 4057166, at * 3 (W.D. Wash. Aug. 14, 2014).

Premium’s primary authority in support of its theory is Bank v. Independence Energy 

Group LLC, No. 12-cv-1369, 2015 WL 4488070 (E.D.N.Y. Oct. 2, 2014). The district court in 

Bank found that, because “Bank provides the Subject Telephone number on his business card, 

professional letterhead for his law practice, and in pleadings and court filings, and he provides it 

to clients, prospective clients, other attorneys, and business contacts,” the number in question 

was a business telephone line. Id. at * 3. As discussed above, this interpretation of the 

regulation would necessarily exempt all home-based businesses from the NDNC programs, and 

is thus inconsistent with the 2005 TCPA Rules.1 Plaintiff respectfully suggests that Bank is 

wrongly decided, and urges the Court to follow Baker, Clauss, and Southwell, which are 

consistent with the FCC’s interpretation of its own rules. See, Siding and Insulation Co. v. Alco 

Vending, Inc., 882 F.3d 886, 894 (6th Cir. 2016) (“Where, as in this case, the relevant opinion 

results from an agency’s interpretation of its own regulations, that opinion is typically entitled to 

significant deference.”)

But, even under the rationale of Bank, Premium’s motion should still be denied. The 

opinion cited by Premium was decided by the court on summary judgment. At the motion to 

dismiss stage, the court held that “[w]hether Bank's phone number is used for Bank's business 

 1 The decision in Bank has been on appeal since July 29, 2015. See Bank v. Independence 

Energy Group LLC, No. 15-2391 (2d Cir.) 

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and thus falls outside the protections of the TCPA cannot be resolved without some limited 

discovery.” Bank, 2014 WL 4954618 at *4 (E.D.N.Y. Oct. 2, 2014). It was only upon complete

discovery that the court concluded that the telephone number fell outside the scope of NDNC 

protection. Thus, even if the Court were to discount the other authorities cited above and rely 

exclusively on the out-of-Circuit Bank, the proper course of action would still be to deny 

Premium’s motion.

CONCLUSION

Based on Plaintiff’s use of the telephone number in question, the relevant FCC guidance, 

and the weight of authorities to consider the question, the calls made by Premium to Plaintiff’s

cellular telephone violated the NDNC regulations of the TCPA. For the foregoing reasons, 

Plaintiff respectfully requests that Defendant Premium Merchant Funding One, LLC’s Motion 

for Judgment on the Pleadings be denied.

 Respectfully submitted,

Date: August 27, 2018 By: s/Matthew R. Wilson

 MEYER WILSON CO., LPA 

 Matthew R. Wilson (Ohio Bar No. 0072925)

 Email: mwilson@meyerwilson.com

 Michael J. Boyle, Jr. (Ohio Bar No. 0091162)

 Email: mboyle@meyerwilson.com

 1320 Dublin Road, Ste. 100

 Columbus, Ohio 43215

 Telephone: (614) 224-6000

 Facsimile: (614) 224-6066

 Attorneys for Plaintiff and the Proposed Classes

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CERTIFICATE OF SERVICE

I hereby certify that on August 27, 2018 I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will send notification of such filing to counsel for 

Defendant, who is registered with ECF.

 By: s/_Matthew R. Wilson

Attorneys for Plaintiff and the Proposed Classes

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