- within Media, Telecoms, IT, Entertainment, Accounting and Audit and Law Department Performance topic(s)
And then there were three.
Adding fuel to the small fire set by similar decisions by courts in the Northern District of Florida and the Central District of Illinois, a Middle District of Florida court on Friday ruled that text messages are not "calls" for purposes of the Do Not Call (DNC) provisions of the Telephone Consumer Protection Act (TCPA).1
The Supreme Court's recent finding that district courts are not bound by the FCC's interpretation of the TCPA in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation2 paved the way for Jones et al v. Blackstone, in which a Central District of Illinois Court found that:
Section 227(c)(5) of the TCPA simultaneously explicitly refers to a "telephone call", a term not defined in the statute itself, and remains silent as to its application of text messages. Text messaging was not an available technology in 1991, and thus "telephone call" would not have included text messages or SMS messages. [...] Moreover, in today's American parlance, "telephone call" means something entirely different from "text message." Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages.3
Then came Davis v. CVS Pharmacy, Inc. in the Northern District of Florida, where Judge Winsor reasoned that "[c]ertainly, no ordinary person would think of a text message as a 'telephone call.' This conclusion — supported by the ordinary public meaning at the time of the provision's enactment — is enough to end this case."4
Now, in Sayed v. Naturopathica Holistic Health, a Middle District of Florida court has also found that text messages are not "telephone calls" for DNC purposes, reasoning that:
Although some judges differ, I agree with and adopt Judge [Winsor's] opinion that "the statutory text here is clear, and a text message is not a 'telephone call.' " Davis, 2025 WL 2491195 at *1. In addition to the fact that in common American English usage, a "telephone call" and a "text message" are separate and distinct forms of communication, the term "text message" appears elsewhere in the TCPA and related amendments, an appearance that confirms Congress understood the pertinent distinction and legislated mindful of the distinction. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. P, § 503(a) (codified at 47 U.S.C. §§ 227(e)(8)(A)–(B)) (distinguishing between "a call made using a voice service" and "a text message sent using a text messaging service").5
At bottom, though they may not align with the majority of district courts' interpretations of Section 227(c)'s application to text messages, these cases signal many courts' increasing willingness to hear defendants' challenges to out-of-date TCPA precedent. TCPA plaintiffs are no longer almost guaranteed to get their putative class actions past the motion to dismiss stage. Defendants would be wise to thoroughly explore all potential defenses and exploit this split at the pleading stage instead of simply answering and moving straight into the discovery stage, where the time and expense in defending these types of cases increase considerably.
Lawyers at Buchanan have extensive experience in both advising companies regarding TCPA compliance and defending companies in lawsuits alleging TCPA violations. Give us a call with any questions you may have regarding TCPA compliance or defense-related issues your company may be facing.
Footnotes
1 47 U.S.C. § 227(c)(5).
2 McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, 606 U.S. 146, 168 (2025).
3 Jones et al v. Blackstone, Case No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).
4 Davis v. CVS Pharmacy, Inc., Case No. 4:24-cv-477-AW-MAF, 2025 WL 2491195, at *4 (N.D. Fla. Aug. 26, 2025).
5 Sayed v. Naturopathica Holistic Health, Case No. 8:25-cv-00847-SDM-CPT, 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
