Two federal appellate courts have now reached opposite conclusions on whether a text message is a “telephone call” under the TCPA. Most recently, the Seventh Circuit narrowed a favorite plaintiff’s litigation tool considerably, at least when it comes to text messages under the TCPA’s do-not-call rules.
In Steidinger v. Blackstone Medical Services, the Seventh Circuit held that the TCPA’s private right of action for DNC violations under 47 U.S.C. § 227(c) does not reach unwanted text messages. The court’s reasoning: Congress used the specific term “telephone call” when it created that private right of action, and a text message doesn’t fit the ordinary meaning of that phrase.
Why Are Courts Disagreeing?
The core dispute is whether a text message counts as a “telephone call” under the TCPA.
The Seventh Circuit says no, at least in the DNC context. Looking back to how Congress used the term in 1991, the court found that “telephone call” traditionally meant sound-based communication. It also pointed out that the TCPA elsewhere distinguishes between a “telephone call” and a “message,” which suggests Congress meant those terms to cover different things. Some district courts have reached the same conclusion, while others disagree.
Earlier this year, the Ninth Circuit held that text messages do qualify as “telephone calls” under the TCPA’s private right of action for ATDS or prerecorded message violations under 47 U.S.C. § 227(b), reasoning that texting is a form of communication between telephones and raises many of the same privacy concerns Congress was worried about when it regulated unsolicited calls in the first place.
As a result, businesses now face conflicting appellate authority on a related issue that substantially affects current TCPA litigation.
Why This Matters
Text message marketing is now one of the most widely used consumer engagement tools, and TCPA litigation involving texts hasn’t slowed down. If courts continue to disagree on whether a text is a “telephone call” under the TCPA, businesses could end up facing different rules depending purely on where a suit gets filed. A campaign that’s low risk in one jurisdiction could still be high risk in another.
Could This Land at the Supreme Court?
Possibly. The Seventh Circuit’s decision substantially increases the possibility that the Supreme Court gets asked to weigh in as more courts split on the issue. Given how many businesses rely on texting to reach consumers every day, combined with the sheer volume of TCPA litigation nationally, this disagreement has the ingredients to eventually attract SCOTUS attention.
What Businesses Should Do Right Now
Steidinger reduces DNC exposure for text campaigns in federal district courts in Indiana, Illinois, and Wisconsin. However, businesses should not view the decision as eliminating DNC risk altogether. Courts outside the Seventh Circuit may still treat texts as “calls” for DNC purposes, and state telemarketing and DNC laws may take the same view regardless of what federal courts decide.
Businesses running nationwide text campaigns should continue to maintain robust DNC compliance programs by:
- Preserving records supporting any DNC exemptions you rely on
- Promptly honoring opt-out requests, including “STOP,” “END,” and “QUIT” replies
- Maintaining and regularly updating internal DNC lists and written DNC policy
- Monitoring judicial, legislative, and regulatory developments on how DNC requirements apply to texting
The bottom line: Businesses should treat Steidinger as a helpful risk mitigator in the Seventh Circuit, not a reason to relax text message compliance practices elsewhere. If you’d like help assessing how this split affects your current campaigns, reach out to discuss a compliance review.
*Adham Hamed contributed to this post.
