Circuit Court Upholds Text Marketing Exception in TCPA
The 7th Circuit Court of Appeals in Chicago last week ruled that the Telephone Consumer Protection Act (TCPA) does not apply to text messages.
The court, in a decision in Steidinger v. Blackstone Medical Services, held that text messages, even unwanted text messages, are not telephone calls as defined within Section 227(c)(5) of the TCPA. This even applies to consumers whose numbers are listed on the National Do Not Call Registry or have requested the sender to stop sending text messages.
The court's opinion rested on the fact that in 1991 when the TCPA was enacted, the term "telephone call" only referred to voice-based communications since text messaging didn't yet exist. The first text message did not happen until 1992.
The Federal Communications Commission, which oversees the National Do Not Call Registry, in 2024 extended consumer protections against unwanted calls to include text messages, but the court's ruling excluded this since it was not included in the original wording of the TCPA.
In its ruling, the court said, "Repeated, unwanted text messages are undoubtedly a nuisance, but they do not fall within the private right of action created by section 227(c)(5). Instead, spam messages may be curbed through agency action pursuant to other provisions of section 227, which we leave undisturbed."
Nonetheless, it is important for companies engaging in text-based marketing to keep in mind that separate provisions in the TCPA that limit the ability of companies to place calls using an automatic telephone dialers or prerecorded/artificial voice, still applies and is not affected by the decision. Texts sent via autodialer technology might still give rise to liability.
It is also worth noting that the ruling only applies in the three states—Illinois, Indiana, and Wisconsin—where the court has jurisdiction. Additionally, telephone calling or consumer protection statutes in other states still apply.
In the initial class-action lawsuit, plaintiffs said Blackstone Medical Services, a provider of home sleep tests, kept sending marketing texts and calls even after they opted out and registered their numbers on the National Do-Not-Call Registry. Blackstone argued that the Do-Not-Call statute covers only phone calls, not texts. The district court agreed and dismissed the TCPA claims, an action that was upheld by the circuit court in this ruling.
Despite this minor victory for telemarketers, legal experts are quick to point out that companies would do well to honor opt-out requests and Do-Not-Call registrations for text campaigns to avoid any potential liability.