Readers may recall a recent piece in which we discussed the first federal appellate court (“7th Circuit Court”) decision to address whether the Telephone Consumer Protection Act’s (“TCPA”) private right of action applies to the receipt of unwanted text messages. After this ruling, other federal courts were expected to adopt its reasoning, which was exactly what a federal judge in North Carolina did in a case involving TCPA claims arising out of the alleged receipt of unsolicited text messages (“TCPA Text Decision”). Below, we discuss the facts alleged, the TCPA Text Decision itself, along with the Court’s reasoning, and ongoing TCPA text messaging compliance considerations.
The TCPA Text Decision Discussed
As alleged in the Complaint, Plaintiff’s cellular telephone number was registered on the National Do Not Call Registry (“NDNC”). Notwithstanding this fact, Plaintiff claimed that a large tobacco company violated the TCPA by delivering unsolicited text messages to his cell phone promoting its products. In response, Defendant moved to dismiss arguing, among other things, that the private right of action contemplated under the TCPA does not apply to text messages. For largely the same reasons as those contained in the 7th Circuit Court decision, the Court agreed.
Although not binding, the Court found the 7th Circuit Court’s reasoning persuasive. Faced with many of the same arguments as those before the 7th Circuit Court, the Court here rejected Plaintiff’s argument that text messages are telephone calls, reasoning that to “call,” as defined in 1991, meant “to get or try to get into communication by telephone.” The Court cited the 7th Circuit Court’s rationale that a “telephone call could not have meant a text message because a telephone was an instrument for reproducing sounds . . . .” Similarly, the Court refused to follow other district courts which held that the term “telephone call” encompasses text messages, noting that “if it had been the intent to include all types of communications, Congress more simply could have used the broader term ‘call’ as it did in § 227(b), rather than ‘telephone call’ as it did in § 227(c)(5).” Accordingly, the Court agreed with Defendant and dismissed Plaintiff’s TCPA text messaging-based claims.
Complying With The TCPA
While this TCPA Text Decision certainly is another positive development for industry, sending commercial text messages remains fraught with risk. Prior to undertaking any text message-based marketing, companies should, among other things, ensure that telephone numbers are not registered with the NDNC and maintain their own internal Do Not Call lists.
Of course, consulting with experienced TCPA attorneys before engaging in any kind of telemarketing campaign is advised. The attorneys at Klein Moynihan Turco (“KMT”) routinely: (1) provide TCPA-related and state-level telemarketing guidance regarding the delivery of text messages; and (2) craft telemarketing policies and procedures for clients. 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.
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