By: Jeffrey Backman, Esq., Roy Taub, Esq., and Jacob Mars, Esq.
The Northern District of Alabama recently dismissed a putative class action, holding that when Congress enacted the TCPA and created a private right of action in 47 U.S.C. § 227(c)(5) for unwanted “telephone calls,” that was limited to voice telephone calls and does not include text messages. Therefore, the court ruled, a plaintiff who receives text messages cannot sue under the TCPA’s do-not-call private right of action. The decision was issued in Conrad v. Hart Consumer Products, No. 4:24-cv-307-CLM (N.D. Ala.).
Applying ordinary principles of statutory interpretation, the court reasoned that determining the meaning of the term “telephone calls” requires asking how a reasonable reader in 1991, when the TCPA was enacted, would have understood that term. The court concluded “telephone calls” referred to real-time voice communication by telephone, and not text-based messages.
The court relied on the omitted-case canon, emphasizing that Congress knew how to speak broadly—in § 227(a)(4) it defined “telephone solicitation” as the initiation of a “telephone call or message”—but when creating the § 227(c)(5) private right it limited suits to recipients of more than one “telephone call,” not “message” or the broader “solicitation.”
Invoking the surplusage canon, the court reasoned that reading “telephone call” to include texts would render Congress’s distinct use of “message” superfluous, especially given the statute’s treatment of fax “messages” as a separate mode of communication.
The court also applied the fixed-meaning canon, declining to expand 1991-era terms to cover later-developed texting technology and echoing the Supreme Court’s admonition that updating the statute for new technologies is a job for Congress, not courts.
The court next turned to the Federal Communications Commission’s contrary and longstanding determinations that the term “telephone calls” does include text messages. After invoking the recent Loper Bright and McKesson Supreme Court rulings, the court found no persuasive explanation for the FCC’s position, and concluded it was entitled to no weight.
This is a thorough and carefully-reasoned decision that surveys the case law and analyzes many of the arguments litigants have raised on this question. In making this decision, the court relied on the Seventh Circuit’s decision along these same lines. It is too soon to tell if that TCPA ruling will similarly guide other district courts to rule similarly. It is more important than ever to have counsel who keep up on these developments to advise on compliance and handle litigation.
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