By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In David Alvarez v. Fiesta Nissan, Inc., the U.S. District Court for the Southern District of Texas held that “telephone calls” under 47 U.S.C. § 227(c)(5) include text messages, allowing a do-not-call claim based on alleged marketing texts to proceed. With Chevron deference no longer controlling and district courts now required to independently interpret statutes, the court applied ordinary tools of statutory interpretation to determine whether “telephone calls” encompass texts under § 227(c)(5). Relying on contemporaneous dictionary meanings, the statute’s broad remedial purpose, and commonsense usage, the court concluded that to “call” is to get or attempt to get into communication by telephone, a formulation broad enough to include texting, particularly given that the term “telephone” does not exclude devices capable of transmitting written messages. It made no difference to the court that text messaging, by all accounts, did not exist at the time of the TCPA’s enactment.
Businesses should continue to monitor these decisions closely, as conflicts among courts continue to emerge and create increasing uncertainty around compliance obligations.
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