A District Court judge in Florida has granted a defendant’s motion to dismiss claims it violated the Telephone Consumer Protection Act, ruling that text messages are not phone calls.
The background: The plaintiff alleged that she received multiple promotional text messages from a health and wellness company even after replying “STOP” to unsubscribe. She claimed the texts violated the TCPA because her number was listed on the National Do Not Call Registry.
- The plaintiff also sought to hold the company’s CEO personally liable, asserting that the messages were sent with her authorization or direction.
- The defendant moved to dismiss, arguing that the TCPA’s private right of action for “telephone calls” does not extend to text messages and that the complaint lacked specific allegations supporting personal liability.
The ruling: Judge Steven D. Merryday of the District Court for the Middle District of Florida sided with the defendant, emphasizing that the statute’s plain language refers specifically to “telephone calls.”
- In rejecting the plaintiff’s reliance on a 2003 order from the Federal Communications Commission interpreting calls to include text messages, Judge Merryday wrote that “a District Court is not bound by the FCC’s interpretation of the TCPA” and must “determine the meaning of the law under ordinary principles of statutory interpretation.”
- Citing recent Supreme Court precedent, the court concluded that “a text message is not a telephone call” because Congress used distinct terms for each in related provisions of the statute.
- “When Congress uses different terms, we expect that they hold different meanings,” the judge noted, pointing to amendments that separately reference “a call made using a voice service” and “a text message sent using a text messaging service.”
- The court also dismissed claims against the company’s CEO, stating that “personal liability of an officer under the TCPA should be the exception rather than the rule” and finding that the complaint’s allegations were too conclusory to establish direct participation or authorization of wrongful acts.
