On October 24, a judge in the U.S. District Court for the Middle District of Florida dismissed a lawsuit alleging promotional text messages sent to a consumer’s phone violated the Telephone Consumer Protection Act (TCPA). The plaintiff, who alleged receipt of multiple texts after replying “STOP” and while the phone number at issue was listed on the National Do Not Call Registry, claimed the messages were unlawful under the TCPA’s private right of action for a person who has received more than one telephone call within any 12-month period.
The court held that the relevant TCPA provision applied only to telephone calls and did not extend to text messages, relying on the statute’s plain language and recent U.S. Supreme Court precedent holding that a district court was not bound by the FCC’s interpretation of the TCPA. The judge explained that, although regulatory guidance suggests that “telephone calls” includes text messages, the plain language of the statute clearly distinguishes texts from telephone calls. The court also rejected the plaintiff’s attempt to hold the company’s CEO personally liable, finding the complaint did not adequately provide sufficient facts to establish the CEO’s direct participation or authorization of wrongful acts. The judge granted the plaintiff leave to amend the complaint by no later than November 14.
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