The Court of Appeals for the Seventh Circuit has affirmed the dismissal of a Telephone Consumer Protection Act class action, ruling that the provision giving individuals the right to sue over unwanted telephone calls does not extend to text messages.
The background: The case stems from a stream of marketing text messages promoting home sleep tests.
- The plaintiffs received marketing texts and calls from the defendant urging them to purchase its home sleep tests, and said the messages kept coming even after they replied “STOP” and added their numbers to the National Do-Not-Call Registry.
- The plaintiffs filed a consolidated class action accusing the defendant of violating the TCPA and the Florida Telephone Solicitation Act, seeking monetary, injunctive, and declaratory relief.
- The defendant moved to dismiss, arguing the TCPA provision under which the plaintiffs sued creates a private right of action only for telephone calls, not text messages. A District Court judge in Illinois agreed, dismissed the TCPA claims, and declined to keep the remaining state law claim.
- Because the plaintiffs never argued their suit could proceed on the alleged calls alone, the Appeals Court treated that argument as waived and considered only the texts.
The ruling: The Appeals Court affirmed, concluding that a text message is not a “telephone call” under the statute.
- Judge Thomas Kirsch of the Seventh Circuit, who wrote that statutes are read according to the ordinary public meaning of their terms when enacted, and when the TCPA became law in 1991, the first text message had not yet been sent. Dictionaries of the era defined a telephone as an instrument for reproducing sounds at a distance, and texts do not reproduce sounds.
- The TCPA elsewhere defines “telephone solicitation” to include a call “or message,” yet the private right of action mentions only calls. When Congress uses different terms, Judge Kirsch wrote, it intends different meanings, so consumers may sue over unwanted calls but not unwanted messages.
- The statute’s fax provisions showed Congress did consider text-based communications sent electronically over phone lines back in 1991, and it treated those as messages, not calls.
- The judge distinguished decisions from other circuits treating texts as calls, noting those cases involved a different section of the TCPA and traced back to a Supreme Court comment that was an assumption, not a holding.
- Nor did the Federal Communications Commission’s practice of reading “call” to include texts change the outcome, since its Do-Not-Call text rules were adopted under a different subsection and courts interpret statutes independently.
- “Repeated, unwanted text messages are undoubtedly a nuisance,” Judge Kirsch wrote. “But they do not fall within the private right of action created by” the provision, adding that spam texts may instead be curbed through agency action under other parts of the statute.
