By: Jeffrey Backman, Esq. and Roy Taub, Esq.
Overview
Two recent district court decisions reached opposite conclusions on whether the TCPA’s do-not-call private right of action in 47 U.S.C. § 227(c)(5) reaches text messages. One court—the United States District Court for the Northern District of Illinois—denied a motion to dismiss and held that § 227(c)(5) applies to texts; another—the United States District Court for the Southern District of Indiana—granted dismissal and held that it does not. Below we compare the arguments, interpretive methods, and outcomes.
Case Postures and Holdings
In Rabbitt v. Rohrman Midwest Motors (N.D. Ill.), the court denied a motion to dismiss, holding that § 227(c)(5) applies to text messages and that the plaintiff plausibly stated a do-not-call claim based on multiple unsolicited marketing texts sent to a number on the National Do Not Call Registry.
In Richards v. Fashion Nova (S.D. Ind.), the court granted a motion to dismiss, holding that a text message is not a “telephone call” under § 227(c)(5), and therefore the complaint failed to state a claim based on unsolicited texts to a do-not-call registered cell number.
Textual Framing and Statutory Structure
Rabbitt reads § 227(c)(5) in the context of § 227(c)(1)’s mandate to the FCC to protect residential subscribers from “telephone solicitations,” coupled with the FCC’s regulations (notably 47 C.F.R. § 64.1200(e) as amended in 2024) expressly applying the do-not-call rules in § 64.1200(c) and (d) to text messages to wireless numbers.
Richards adopts a plain-meaning approach fixed in 1991, concluding “telephone call” referred to voice communications and not text messages, emphasizes that the TCPA separately defines “telephone solicitation” as “the initiation of a telephone call or message,” and reasons that if “call” included “message,” that definition would be superfluous.
Role of FCC Interpretations Post-Loper Bright/McLaughlin
Rabbitt accords Skidmore-style respect to the FCC’s consistent view since 2003 that the TCPA covers texts, while independently concluding the best reading of § 227(c) includes texts in light of the statutory scheme and the 2024 amendment to § 64.1200(e).
Richards declines to rely on FCC interpretations to expand § 227(c)(5), reasoning that doing so would effectively more than double the statute’s private causes of action and is not a permissible “filling up the details” after Loper Bright and McLaughlin.
Use of Stare Decisis and Prior Judicial Understandings
Rabbitt invokes statutory stare decisis to note that longstanding appellate authority has treated texts as “calls” under the TCPA and reads Congress’s 2018 inaction—despite that backdrop—as tacit acceptance of applying § 227(c) to texts. Richards distinguishes decisions concerning § 227(b), underscores that Congress knows how to reference texts explicitly (as in § 227(e)), and highlights that later reporting provisions differentiate “call made” under § 227(c) from “call made or text message sent” under §§ 227(b) and (e).
Practical Consequences Noted by the Courts
Rabbitt emphasizes that excluding texts from § 227(c)(5) would arbitrarily narrow the statute’s protection notwithstanding modern communications realities and would disrupt a coherent regulatory scheme Congress authorized the FCC to implement. Richards stresses judicial restraint: expanding “telephone call” to include texts is a policy choice for Congress, not courts, particularly after Loper Bright removed Chevron deference.
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