Seventh Circuit Holds that Text Messages Are Not “Telephone Calls” Under the TCPA

The Seventh Circuit strengthened a meaningful argument in marketing-text message cases for TCPA defendants. In Steidinger v. Blackstone Medical Services, the court held that text messages are not “telephone calls” for purposes of the private right of action created by Section 227(c)(5), which covers violations of the FCC’s do-not-call (DNC) and quiet hour rules. That distinction matters because Section 227(c)(5) allows private plaintiffs to sue over “telephone calls” that violate the FCC’s DNC rules and quite hour rules, but the provision does not expressly include text messages, which the court found was a critical and dispositive omission.

The plaintiffs alleged that they received marketing text messages promoting home sleep tests and continued to receive messages despite efforts to opt out and registration on the National DNC Registry. They brought a class action suit under Section 227(c)(5), but both the district court and the Seventh Circuit concluded that the claim failed because the statute’s private right of action covers only “telephone calls,” not text messages.

The Seventh Circuit noted that, when Congress enacted the TCPA in 1991, the ordinary meaning of “telephone call” could not have contemplated text messages as the first text message was not sent until 1992. More importantly, the court focused on Congress’s use of different terms in different parts of the statute. Other provisions of Section 227(c) use the term “telephone solicitation,” which the TCPA defines to include “a telephone call or message” made to encourage the purchase of goods or services. Section 227(c)(5), by contrast, creates a private right of action only for the receipt of more than one “telephone call” within a twelve-month period in violation of the rules. According to the court, it does not mention telephone messages, nor does it use the defined term “telephone solicitation,” which encompasses messages, a distinction which the court found was intentional. The court reasoned that had Congress intended to create a private right of action covering both calls and text messages, it knew how to do so and could have used the broader terminology it employed elsewhere in Section 227(c).

The plaintiffs leaned on the FCC’s TCPA interpretations. The Seventh Circuit acknowledged that the FCC has treated texts as calls in some TCPA contexts and has extended National DNC Registry protections to text messages. But the court viewed those ruling as addressing the FCC’s authority over “telephone solicitations,” a statutory term, which as noted, includes both calls and messages. According to the Seventh Circuit, those rulings did not answer the separate question of whether Congress created a private damages claim for text messages under Section 227(c)(5). In the court’s view, the FCC could not use the broader term to expand a narrower private right of action.

Moreover, even if the FCC’s interpretation were relevant, the Seventh Circuit said it would not control. Relying on McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., the court emphasized that federal courts must independently interpret the TCPA. As mentioned in our previous blog post on McLaughlin, this will allow more challenges to longstanding FCC interpretations where defendants can show that the agency has gone beyond the statutory text.

Steidinger puts the Seventh Circuit at odds with at least one district court in the Ninth Circuit, which held that the private right of action under Section 227(c)(5) does include text messages. In contrast, a Georgia federal district court in Ethan Radvansky v. Kendo Holdings, Inc., held that Section 227(c)(5) does not apply to text messages, in a case that was appealed to the Eleventh Circuit, but which the parties stipulated to dismiss earlier this month. With that dismissal, any Circuit Court tension is currently limited to the Ninth Circuit’s recent decision in Howard v. Republican National Committee, which held that a text message can be treated as a “call” under the TCPA for purposes of private right of action under Section 227(b). However, the Seventh Circuit distinguished that case because it involved the wireless calling prohibitions under Section 227(b), not DNC claims under Section 227(c)(5). According to the Seventh Circuit, the question in Steidinger was narrower: not whether texts can ever be treated as calls under the TCPA, but whether Congress included texts in the specific DNC private right of action.

For businesses, the takeaway is important but limited. Businesses should not treat Steidinger as a free pass for text-message marketing. The decision is limited to Section 227(c)(5). Companies should continue to maintain consent, opt-out, and compliance procedures. Still, Steidinger is a substantial win for TCPA defendants and gives them a strong new basis to challenge federal DNC claims based solely on text messages. The same reasoning may be invoked in cases involving opt-out disputes or marketing texts allegedly sent during restricted calling hours, to the extent those claims depend on Section 227(c)(5)’s reference to “telephone calls.” Whether other appellate courts adopt the Seventh Circuit’s approach remains to be seen, but the decision is likely to become a key citation in TCPA text-message litigation.