Seventh Circuit Creates New Uncertainty for TCPA Text Message Compliance

Last week, the Seventh Circuit severely narrowed the Telephone Consumer Protection Act’s (TCPA) application to text messages, following several district court decisions. The court held that private litigants cannot sue under the Do Not Call prohibitions when a sender fails to honor opt-out requests for unwanted marketing text messages.

The decision may limit one avenue of TCPA liability, but it does not simplify compliance. Instead, the Seventh Circuit’s departure from other appellate courts adds uncertainty for businesses and could accelerate Supreme Court review of whether and how the TCPA applies to text messages.

In Steidinger v. Blackstone Medical Services, the Seventh Circuit concluded that although the Federal Communications Commission (FCC) interpreted the Do Not Call provision to apply to text messages, Congress limited 227(c)(5)’s private remedy to repeated telephone calls, not text messages.

TCPA Text Message Claims Narrowed

The plaintiffs alleged that Blackstone Medical Services continued sending text messages promoting home sleep tests after recipients replied “STOP” and, in some instances, registered their numbers on the National Do Not Call Registry. The defendants argued that the TCPA’s private right of action under (c)(5) applies to telephone calls, not text messages. The Seventh Circuit agreed, looking to the ordinary meaning of “telephone call” when Congress enacted the TCPA in 1991, the court concluded that a call referred to voice communications, not written messages.

The court also emphasized that Congress used broader language elsewhere in the TCPA. For example, the statute defines a “telephone solicitation” as a “telephone call or message.” Because § 227(c)(5) authorizes private suits only for repeated “telephone call[s],” the court concluded that Congress intentionally adopted a narrower private remedy than the broader regulatory framework governing telephone solicitations.

The plaintiffs cited FCC regulations treating text messages as calls. The Seventh Circuit rejected the plaintiffs’ arguments, explaining that those authorities primarily involve different statutory provisions, and the Supreme Court’s decision in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp held that courts are not bound by the FCC’s interpretation of the TCPA.

Circuit Split Over TCPA Text Messages

The Seventh Circuit’s decision departs from other circuit courts’ holdings. Before the Supreme Court’s decision in McKesson, the First, Second, and Eleventh Circuits each recognized that text messages qualify as “calls” under § 227(b), the TCPA provision governing autodialed and prerecorded-voice calls. The Eleventh Circuit expressly relied on the FCC’s interpretation that the prohibition on autodialed calls encompasses both calls and text messages.

The Second Circuit likewise noted the FCC’s interpretation and relied on the Supreme Court’s earlier observation in Campbell-Ewald Co. v. Gomez that text messages qualify as calls under § 227(b). At the same time, the First Circuit cited the same Supreme Court statement in recognizing that the TCPA applies to text messages. However, the Seventh Circuit distinguished this decision, noting that it predated the Supreme Court’s decision in Duguid, which clarified that the Court had never actually decided whether text messages are calls under the TCPA because the issue was undisputed by the parties.

More recently, after McKesson, the Ninth Circuit held that a text message constitutes a call under § 227(b) because it is an attempt to communicate by telephone and implicates the same privacy interests Congress sought to protect through the TCPA. Although the court ultimately held that the multimedia text at issue did not violate the prerecorded-voice provisions because the prerecorded voice was not used to make or initiate the call, it reaffirmed that text messages fall within the scope of § 227(b).

Supreme Court Review May Follow

These recent decisions potentially create a circuit split or set the stage for different treatment of text messages based on different provisions of the TCPA. The developing circuit split could ultimately reach the Supreme Court, with implications extending beyond Do Not Call claims to other TCPA provisions governing text messaging, including consent, caller ID, texting, opt-out, and National Do Not Call requirements.

Companies should not assume that other courts will adopt the Seventh Circuit’s interpretation. Until further guidance emerges, continuing to treat text messages as subject to all applicable TCPA requirements is the safest bet.

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