As our readers may recall, we have been tracking a pending appeal centered on the question of whether or not there is a private right of action under the Telephone Consumer Protection Act (“TCPA”) for the receipt of text messages. Recently, the United States Court of Appeals for the Seventh Circuit (“7th Circuit”) answered this question and below, we discuss the ruling and its implications for companies that engage in text-based marketing and TCPA compliance in general.
No Private Right of Action for Receipt of Unsolicited Texts Under The TCPA
Codified at 47 U.S.C. § 227(c)(5), the TCPA confers a private right of action to anyone who receives more than one “telephone call” within any 12 month period from or on behalf of the same entity. In Steidinger v. Blackstone Medical Services, Plaintiffs, on behalf of themselves and a putative class, alleged that Defendant violated the TCPA by sending them unsolicited marketing text messages. Plaintiffs further claimed that Defendant violated the TCPA by sending text messages after replying “STOP” and/or having their telephone numbers registered on the National Do Not Call registry (“DNC Registry”). After the district court granted Defendant’s motion to dismiss, Plaintiffs appealed. The sole question before the 7th Circuit on appeal was whether the TCPA’s private right of action extends to text messages.
Starting with the statutory text, the 7th Circuit looked at what the term “telephone call” meant when the TCPA was enacted back in 1991. Because the definition of “telephone” was “an instrument for reproducing sounds at a distance,” and “call” meant “to get or try to get into communication by telephone,” the Court concluded that “telephone call” referred to communications via sound. With this context, the Court rejected Plaintiffs’ invitation to broaden the meaning of telephone call, as used in § 227(c)(5) of the TCPA, to include text messages. Continuing its analysis, the Court looked at surrounding provisions within the TCPA as further evidence that there is no private right of action for the receipt of text messages. Whereas other provisions of the TCPA consistently use the more encompassing term “telephone solicitation,” the TCPA’s private right of action uses the phrase “telephone call.” According to the Court, “[t]he best reading of § 227(c)(5) is therefore that it provides a narrower remedy than recovery for all forms of telephone solicitation.” Accordingly, the Court concluded that there is no private right of action under subsection (c)(5) of the TCPA for receipt of unsolicited text messages.
What Does This Mean for Marketing Texts and TCPA Compliance Generally?
While this decision certainly is a victory for text-based marketers, the limitations of this TCPA text-based ruling must be noted. First, the Court’s ruling only applies to section § 227(c) of the TCPA. Subsection (b), which prohibits unsolicited autodialed and prerecorded-voice communications, remains in play, and numerous courts have determined that this subsection of the TCPA applies to text messages. Second, this ruling is binding only in courts within the 7th Circuit (i.e., Illinois, Indiana, and Wisconsin) and, as such, is merely persuasive authority in other circuits. Third, the decision applies to private rights of action; meaning that state and federal regulators may still proceed with actions for sending unsolicited text message marketing.
In addition, companies that send marketing text messages must also be cognizant of state-specific mini-TCPAs. Depending on the state, its respective mini-TCPA laws may provide a private right of action for consumers and/or give enforcement authority to state regulators.
The attorneys at Klein Moynihan Turco (“KMT”) routinely: (1) provide federal and state law guidance relating to the delivery of text messages; (2) craft telemarketing policies and procedures for clients; and (3) advise on state and federal telemarketing law compliance matters. In addition, KMT’s attorneys have successfully defended numerous companies in TCPA-related text message lawsuits. If you have been sued for sending unsolicited text messages in violation of the TCPA, or need assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
Attorney Advertising
Photo by Mert Kahveci on Unsplash
Similar Blog Posts:
Get Out of TCPA Jail Free Card? Maintain a DNC Policy!
Are Text Messages Telephone Calls For TCPA DNC Private Right of Action Purposes?
Maintain Internal Do Not Call List Compliance Procedures or Face the Consequences!
