By: Jeffrey Backman, Esq. and Roy Taub, Esq.
Another federal court has held that marketing text messages are “telephone calls” subject to the TCPA’s Do-Not-Call rules, denying a motion to dismiss in Esquivel v. Mona Lee Inc. from a case out of the Southern District of California. The defendant argued that texts are not “telephone solicitations” or “calls” under Section 227(c)(5), but the court rejected that position.
The court emphasized its belief that Section 227(c)(5) creates a private right of action for persons who receive more than one telephone call in a 12‑month period in violation of the national Do-Not-Call rules, and it pointed to the statutory and regulatory definition of “telephone solicitation” as “the initiation of a telephone call or message” encouraging the purchase of goods or services. While acknowledging recent Supreme Court cases limiting deference to federal agencies, the court observed that FCC regulations can still inform the analysis and highlighted earlier FCC pronouncements treating texts as covered by the TCPA.
Takeaway: Add one more district court to the column treating marketing texts as “calls” under the TCPA’s DNC regime, further deepening the patchwork of outcomes across jurisdictions.
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