After the United States Supreme Court’s decision in McKesson, readers of this blog know that companies facing Telephone Consumer Protection Act (“TCPA”) allegations have raised challenges to these claims on grounds previously unavailable. In the wake of McKesson, federal district courts now can independently evaluate TCPA claims without deferring to interpretations or guidance issued by the Federal Communications Commission’ (“FCC”). In one such TCPA case, an Illinois federal judge ruled that text messages are not “telephone calls” for purposes of the TCPA’s Do-Not-Call (“DNC”) regulations. Below, we discuss the decision in detail, the current status of the case, and its implications for future TCPA claims.
No Private Right of Action for TCPA DNC Claims
In Jones v. Blackstone Med. Servs., LLC, Plaintiffs, on behalf of themselves and a putative class, filed a Complaint in the United States District Court for the Central District of Illinois asserting TCPA DNC claims against Blackstone for the receipt of allegedly unwanted commercial text messages. Blackstone moved to dismiss the Complaint on the grounds that the TCPA’s provision affording a private right of action does not prohibit text messages. In support of its argument, Blackstone asserted, among other things, that the phrases “text message” and “SMS message” are completely absent from the TCPA’s private right of action clause. In granting Blackstone’s Motion to Dismiss, the Court evaluated the plain language of the TCPA and determined that the TCPA’s private right of action provision does not apply to text messages. Although the Court acknowledged that it must afford a certain amount of deference to FCC interpretations of the TCPA, the Court agreed with Blackstone that the absence of: (1) a definition of the term “telephone call” which includes the phrase “text message”; and (2) any mention of the term “text message” in the TCPA’s private right of action clause, warranted dismissal of the Complaint. On August 11, 2025, Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit and Plaintiffs recently filed their appellants’ brief. Blackstone’s response is due on November 20, 2025.
Future of TCPA Claims and TCPA Compliance
It should be noted that the Blackstone decision is not an outlier, as a Florida federal district court recently reached the same conclusion for similar reasons as those set forth in Blackstone. Post-McKesson, district courts now are being asked to independently interpret various provisions of the TCPA that previously were foreclosed by FCC TCPA interpretations and rulemakings.
Since the TCPA was enacted over thirty years ago, the FCC has implemented a whole host of regulations pursuant to its statutory enabling authority. In a post-McKesson world, FCC regulations and statutory interpretations are now ripe for challenges in district courts across the country. Although companies sued for alleged TCPA violations have new viable arguments to defend against TCPA claims, inconsistent rulings amongst jurisdictions will create uncertainty for the telemarketing industry and TCPA-compliance going forward.
Prior to McKesson, complying with the TCPA and its implementing regulations already was extremely nuanced and fraught with landmines. In this uncertain landscape, complying with the TCPA and other federal and state telemarketing laws requires the guidance of attorneys who stay at the forefront of the latest developments in the telemarketing law space. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on federal and state telemarketing law compliance; and (2) defend companies named as defendants in TCPA lawsuits.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA, 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.
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