A serial Telephone Consumer Protection Act (“TCPA”) litigant recently filed a complaint alleging that he received unsolicited text messages in violation of the TCPA’s Do Not Call regulations. Below, we discuss the allegations set forth in the Complaint, the Motion to Dismiss filed by the company that purportedly delivered the violative text messages, and the defenses available to those named in TCPA Do Not Call lawsuits.
Do Text Messages Give Rise to Do Not Call Claims?
Earlier this year, frequent TCPA plaintiff Chet Michael Wilson (“Plaintiff”) filed a complaint in an Oregon federal court alleging that he received six text messages: (1) without his consent; and (2) while his cell phone number was registered on the National Do Not Call registry. Plaintiff asserted that the company’s purported delivery of these unsolicited messages violated the TCPA’s Do Not Call provision. In response, Defendant filed a motion to dismiss on several grounds including, among other things, that: (1) the TCPA’s private right of action and its corresponding Do Not Call regulation apply to telephone calls only and not text messages; (2) the TCPA and the Do Not Call provision do not apply to cell phone numbers; and (3) the Plaintiff’s status as a serial TCPA litigant demonstrates that he uses his cell phone primarily for business purposes.
Citing recent decisions from other federal courts, Defendant argues that text messages are not telephone calls and thus, are not actionable under the TCPA and its corresponding Do Not Call rule. In support of this argument, Defendant quotes from a recent Northern District of Florida case that dismissed a TCPA Do Not Call claim. In that case, the court explicitly stated that “[c]ertainly, no ordinary person would think of a text message as a telephone call. This conclusion – supported by the ordinary public meaning at the time of the provision’s enactment – is enough to end this case.” To further support its argument that the Do Not Call regulation does not apply to cell phones, Defendant maintains that the plain text of the TCPA and the Do Not Call rule only apply to “residential telephone subscribers.” Lastly, Defendant highlights that Plaintiff has filed 73 TCPA lawsuits since early 2024, all involving the subject telephone number at issue in this proceeding. This fact suggests that “plaintiff clearly has made a business out of the 9999 Number . . . [a]s such, Plaintiff cannot establish any reasonable expectation that the 9999 Number is used for residential purposes, placing it outside the TCPA’s protections.”
Freed from the constraints previously imposed by Federal Communications Commission (“FCC”) guidance and statutory interpretation, federal courts are now at liberty to independently assess whether marketing text messages violate the Do Not Call regulation. After the Supreme Court’s decision in McKesson, companies faced with TCPA Do Not Call allegations now have far more defenses that can be advanced to defeat these claims.
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