By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In the ongoing evolution of technology and telemarketing law, federal courts are regularly called upon to answer a seemingly simple, but hotly litigated question: when the Telephone Consumer Protection Act (“TCPA”) says “telephone call,” does that include a text message? The Northern District of Georgia’s decision in Radvansky v. Kendo Holdings, Inc. adds a potentially definitive answer, at least as far as claims brought under 47 U.S.C. § 227(c)(5) go.
The Plaintiff, Ethan Radvansky, alleged that Kendo Holdings (d/b/a Fenty Beauty) sent him telemarketing text messages even after he registered his cell phone on the national do-not-call registry, in violation of the TCPA. He filed a putative class action under § 227(c)(5), the provision granting a private right of action to persons who receive multiple “telephone calls” in violation of the TCPA.
Kendo Holdings filed a motion for judgment on the pleadings, contending that § 227(c)(5) does not apply to cell phone users and, crucially, that it applies only to “telephone calls,” not text messages. The court didn’t need to address the first argument—it found the latter argument dispositive. What’s particularly interesting about the ruling is that the very same judge last year rejected a different argument that § 227(c)(5) does not apply to cellular telephones.
“Telephone Call” Means What It Says—And Not a Text Message
The court’s analysis was clear and textual. Starting with the “plain language of the provision,” the court zeroed in on the fact that § 227(c)(5) references a private right of action for those who receive “more than one telephone call” in violation of the TCPA.
The court methodically dismissed each of Plaintiff’s counter-arguments:
- The “Telephone Solicitations” Argument: The Plaintiff pointed to § 227(c)(1), which deals with “telephone solicitations” and defines them to include “messages.” But the court noted that the private right of action in § 227(c)(5) specifically references “telephone calls,” not solicitations or messages, a deliberate choice by Congress, the court reasoned.
- Lack of “Text Message” Terminology in the TCPA: Plaintiff argued that the TCPA’s age explained its silence on text messages, but Congress has since amended the Act to use the term “text message” in other provisions. Where Congress uses different terms, courts expect them to mean different things, especially when giving them the same definition would render one superfluous.
- The Campbell-Ewald Decision Doesn’t Save the Day: Plaintiff invoked a Supreme Court case suggesting text messages might be “calls.” The Radvansky court pointed out that the Supreme Court in that case merely assumed, but did not decide, whether texts qualified. Most importantly, the part of the Act discussed in Campbell-Ewald (“any call” in § 227(b)(1)(A)(iii)) was not the narrower “telephone call” wording in § 227(c)(5).
- Other TCPA Provisions Covering Modern Technology: Plaintiff invoked neighboring provisions referencing “call” transmissions to paging devices and similar technologies. But again, those sections use “any call,” while § 227(c)(5) uses only “telephone call.” The court refused to conflate the two.
Thus, the Northern District of Georgia concluded that, under the current statutory language, text messages are not “telephone calls” for purposes of a § 227(c)(5) private right of action.
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