Background
Plaintiffs received repeated marketing text messages and calls from Blackstone Medical Services advertising home sleep tests. Despite indicating they did not wish to receive communications—by replying “STOP” to text messages and enrolling in the National Do-Not-Call Registry—they continued receiving unsolicited contacts. The plaintiffs filed a consolidated class action alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and the Florida Telephone Solicitation Act.
Blackstone moved to dismiss the TCPA claims, arguing that Section 227(c)(5)—the provision under which plaintiffs sued—creates a private right of action only for unwanted telephone calls, not text messages. The district court agreed, found the plaintiffs failed to state a claim under Section 227(c)(5), and dismissed the case after declining supplemental jurisdiction over the state-law claim.
The Court’s Holding
The Seventh Circuit affirmed, holding that Section 227(c)(5) does not permit plaintiffs to sue for unwanted text messages. The court based its reasoning on the ordinary public meaning of “telephone call” at the time of the TCPA’s enactment in 1991. In 1991, a telephone was defined as “an instrument for reproducing sounds at a distance,” and a call meant “to get or try to get into communication by telephone.” Text messages—which do not reproduce sounds—therefore fall outside this definition. Because the first text message was not sent until December 1992, the term “telephone call” could not have been understood to encompass texting when Congress enacted the TCPA.
The court emphasized that although statutory meaning can accommodate new technological applications, texting does not qualify as a new application of “telephone call.” The court further noted that other TCPA provisions distinguish between “telephone calls” and “messages.” Most significantly, Section 227(a)(4) defines “telephone solicitation” to include both calls and messages, yet Section 227(c)(5) creates a private right of action only for calls. Under the canon of meaningful variation, this distinction indicates Congress intended “calls” and “messages” to refer to different categories of communication. The court rejected plaintiffs’ argument that Congress’s failure to amend Section 227(c)(5) to include texting constituted implicit adoption of a broader interpretation, noting that Congress has explicitly amended other TCPA subsections to cover text messages, suggesting it knows how to do so when intended.
Key Takeaways
- Section 227(c)(5)’s private right of action applies only to “telephone calls,” not text messages or other telephone-based communications.
- Statutory meaning is fixed at enactment, and “telephone call” in 1991 referred exclusively to sound-based communication; texting cannot be retrofitted as a new application of this term.
- The TCPA distinguishes between “calls” and “messages” in other provisions, and courts must respect these distinctions under the meaningful-variation canon.
- Regulatory assumptions in prior Supreme Court cases (like Campbell-Ewald) that texting qualifies as a “call” did not resolve this statutory interpretation question and were not binding on this analysis.
Why It Matters
This decision creates a significant gap in private enforcement against spam texting. As SMS has become the primary communication medium, unwanted marketing texts are ubiquitous. However, individuals now cannot sue under Section 227(c)(5)—the TCPA’s most accessible private right of action—for text-based spam. Instead, consumers must rely on regulatory action by the Federal Communications Commission or pursue state-law remedies, which may be less readily available or less potent. The ruling illustrates the tension between statutory textualism and the remedial purpose of consumer-protection statutes, with the court ultimately privileging adherence to the statute’s original text and Congress’s specific language choices.
The decision effectively signals that Congress must legislate to close this gap if it intends to provide private remedies for spam texting. Until then, defendants can point to Steidinger to argue that text-based violations fall outside Section 227(c)(5), leaving consumers reliant on administrative enforcement rather than private litigation—a substantially weaker enforcement mechanism for many individuals.