By: Jeffrey Backman, Esq., Roy Taub, Esq., and Jacob Mars, Esq.
In Michael Anthony v. Brian Marketing Group, No. 24-80800-CIV-CANNON (S.D. Fla. Sept. 11, 2026), the United States District Court for the Southern District of Florida denied the plaintiff’s motion for final default judgment after finding the TCPA’s do-not-call rules, under which the lawsuit was brought, do not apply to cellular telephones or to text messages.
Plaintiff alleged five unsolicited text messages over 12 months to his cellphone, each promoting immediate availability for drug or alcohol treatment and directing him to different callback numbers, and claimed his number was on the National Do-Not-Call Registry with no consent or solicitation. Plaintiff brought a claim under only 47 U.S.C. § 227(c)(5), asserting the text messages to his cellphone violated the TCPA’s national do-not-call rules and regulations. After proper service and no response, the clerk entered default; plaintiff moved for final default judgment and voluntarily dismissed putative class claims contemporaneously.
The court denied the plaintiff’s motion, holding § 227(c) protects “residential telephone subscribers,” and the complaint did not plausibly allege that status for a cellphone user. Relying on ordinary-meaning analysis at the time of enactment and statutory structure distinguishing “residential” from “cellular,” the court concluded § 227(c) does not cover cellular subscribers.
The court declined to adopt the FCC’s 2003 presumption that wireless subscribers on the DNC are “residential,” holding the agency exceeded its authority under § 227(c) by expanding the statutory term and, effectively, the private right of action. Citing post-Loper Bright and McLaughlin principles, the court undertook independent statutory interpretation, afforded only “appropriate respect” to the agency, and found the 2003 Order impermissibly broadened the statute’s scope.
As an independent ground, the court also concluded that “telephone call” in § 227(c)(5) does not include text messages—a technology that did not exist at the time of the enactment of the TCPA—and incorporated the Seventh Circuit’s reasoning and analysis in its recent Steidinger decision.
This decision adds to the post-Loper Bright case law rejecting numerous FCC interpretations, here the FCC’s 2003 “residential” presumption for cellular telephone subscribers. With sophisticated counsel, these challenges can appear in numerous forms and at numerous stages of a case and may, as here, be completely case-dispositive.
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