On October 24 2025, the United States District Court for the Middle District of Florida issued another favorable decision for companies contesting National Do Not Call (“DNC”) claims. In El Sayed v. Naturopathica Holistic Health, Inc., Plaintiff received several unwanted messages from Defendant, despite the fact her number was listed on the National DNC registry. Accordingly, she filed a Complaint arguing that delivery of the subject texts constituted Telephone Consumer Protection Act (“TCPA”) National Do Not Call (“DNC”) violations. The Court dismissed Plaintiff’s Complaint, finding that Defendant’s text messages did not violate the TCPA’s DNC rules.
As our readers are aware, the TCPA generally prohibits companies from placing telemarketing calls to consumers who have registered their telephone numbers on the National DNC list. Whether commercial text messages violate TCPA DNC prohibitions, however, has been the subject of a string of recent court decisions.
How Did the Court Adjudicate Plaintiff’s TCPA DNC Claims?
The TCPA’s DNC provisions create a private right of action for individuals who: 1) have registered their telephone numbers on the National DNC registry; and 2) receive more than one telephone call from a seller within a 12-month period. Plaintiff alleged that she received multiple text messages from Defendant advertising its products and services. Plaintiff argued that Defendant’s marketing texts should be construed as telephone calls, subjecting Defendant to statutory damages because her number was on the National DNC list.
The Court utilized a two-step analysis to rule on Defendant’s Motion to Dismiss:
- In 2003, the Federal Communications Commission (“FCC”) issued a rulemaking which explained that the protections of the TCPA’s DNC provisions should extend from voice calls to include text messages. However, on June 20, 2025, the United States Supreme Court ruled in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp. that district courts are “not bound by the FCC’s interpretation of the TCPA.” Thus, the El Sayed Court was tasked with deciding whether unwanted commercial text messages violate TCPA DNC prohibitions under “ordinary principles of statutory interpretation.”
- The ordinary principles of statutory interpretation analysis begins with the plain language of the provision subject to interpretation. This means that words will be assigned their “ordinary, contemporary, common meaning.” As noted above, the TCPA’s DNC provisions specifically create a private right of action for individuals who have received more than one telephone call within a 12-month period. The Court opined that text messages and telephone calls are separate and distinct in common American English language usage. Additionally, telephone calls and text messages are different forms of communication.
In order to adequately state a claim, Plaintiff would have had to allege that she received at least two telemarketing calls from Defendant in a 12-month period. Because she only alleged the receipt of text messages in her TCPA Complaint, the case was dismissed.
Why Does Al Sayed Matter to Your Business?
Al Sayed is another decision that further defines the split between courts as to whether text messages constitute calls for TCPA DNC purposes. An increasing number of courts have chosen not to follow the FCC’s TCPA guidance in the wake of McLaughlin. Against this backdrop, it is important that businesses consult with experienced telemarketing attorneys to explore previously untenable TCPA lawsuit defenses.
Over the past several decades, the attorneys at Klein Moynihan Turco have defended countless TCPA claims against the telemarketing industry. If you are interested in working with attorneys who can assist your business with all of its telemarketing law needs, 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 obtaining 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.
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