By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In a recent decision from the Northern District of Georgia, the court dismissed a TCPA class action alleging that marketing text messages violated the National Do Not Call (DNC) rules, holding that the TCPA’s private right of action for “telephone calls” under 47 U.S.C. § 227(c)(5) does not extend to text messages. The case involved a plaintiff who allegedly received multiple promotional texts intended for someone else, despite having his personal number on the National DNC Registry, and who sought to represent a nationwide class. The plaintiff proposed a National Do Not Call Registry Class of persons who, among other criteria, received more than one voice or text message in a 12‑month period while their numbers were on the DNC registry. The defendant moved to dismiss.
What the Court Decided
- Cellphones can qualify as “residential” for DNC purposes. The court joined other judges in the district in holding that “residential telephone subscriber” includes users who employ their cellphones for personal, nonbusiness purposes, but facts are required to demonstrate “residential” status. The court held that the plaintiff adequately alleged he was a residential telephone subscriber and denied dismissal on that ground.
- But, according to the court, “telephone call” in § 227(c)(5) does not include text messages. Applying ordinary statutory interpretation post-Loper Bright and McLaughlin, the court concluded that Congress’s use of “telephone call” in § 227(c)(5) means calls—not texts—and noted Congress has elsewhere referenced “text message,” underscoring the distinction. The court held that the § 227(c)(5) reference to “telephone call[s]” does not encompass text messages and followed other courts in the circuit reaching the same conclusion. The court emphasized that Congress’s choice to use “text message” in a neighboring provision, while leaving § 227(c)(5) unamended, supports reading “telephone call” as distinct from texts.
- Text means what it says. The ordinary meaning of a “telephone call” is distinct from a “text message,” and Congress’s deliberate word choices across the TCPA matter. The court reasoned that “telephone call” is clear and unambiguous, that common usage distinguishes calls from texts, and that reading the terms distinctly avoids surplusage.
- The court granted the motion to dismiss and directed entry of judgment for the defendant.
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