Conflicting Decisions Illustrate Uncertainty as to Whether TCPA Extends to Text Messages

Two recent District Court opinions highlight an ongoing dispute as to whether the TCPA and its implementing regulations should apply to mobile (cellular) phones and text messages received thereon, as opposed to the more limited application of only traditional residential landlines.

The District Court for the Western District of Missouri recently denied a defendant’s motion to dismiss a TCPA claim, holding, among other things, that 47 C.F.R. § 64.1200(d) broadly applies to text messages just as it applies to telephone calls.  Eagle v. GVG Capital, LLC, No. 22-cv-00638-SRB, 2023 WL 1415615 (W.D. Mo. Jan. 31, 2023).  47 C.F.R. § 64.1200(d) protects consumers from receiving unsolicited telemarketing calls, stating that no person or entity may make such calls to a residential telephone subscriber unless procedures are put in place to maintain a list of those who request not to be contacted that meet a set of minimum standards.  See 47 C.F.R. § 64.1200(d).

In Eagle, the plaintiff sued Defendant GVG Capital, LLC, a marketing and lead generation company, on behalf of herself and three classes alleging multiple TCPA violations, including the delivery of solicitation text messages to the class despite their telephone numbers being on the National Do Not Call Registry (NDNCR) and alleging that those text messages did not include the sending defendant’s contact information.  The plaintiff alleged that she uses her cellphone as her residential telephone number and had it registered with the NDNCR in 2012.  In 2022, she began receiving text messages from a series of numbers asking if she was interested in selling her home and directing her to a real estate website, and plaintiff alleged that these messages did not contain the required contact information and disclosures prescribed by the TCPA.

The Court held that the plaintiff survived the motion to dismiss, finding generally that because courts have applied various regulations under the TCPA to text messages, the TCPA’s protections should extend to the plaintiff on all her counts.  Of note, the Court dismissed the defendant’s argument that § 64.1200(d)(4), the section governing violations for not including contact information in such messages, applies only to phone calls and not text messages.

First, in ruling on the (d)(4) count, the Court noted that the FCC has recognized that the TCPA and implementing regulations apply to text calls to wireless numbers, including “short message service (SMS) calls.”  The Court next emphasized that other courts have found that text messages generally fall under 64.1200(d) and referenced several cases illustrating that point.  Citing Hand v. Beach Entm’t KC, LLC, 456 F. Supp. 3d 1099, 1124 (W.D. Mo. 2020) (denying motion for summary judgment which argued that “§ 64.1200(d) does not apply to receipt of text messages on a cell phone but rather solely applies to calls made to a ‘residential telephone subscriber’”); Doohan v. CTB Inv’rs, LLC, 427 F. Supp. 3d 1034, 1069 (W.D. Mo. 2019); see also Pariseau v. Built USA, LLC, 2022 WL 3139243, at *2 (M.D. Fla. Aug. 5, 2022) (“Because Pariseau in Counts I and II alleges the receipt of ‘more than one’ text message violating 47 C.F.R. §§ 64.1200(c) and (d), Counts I and II state a claim.”).  The Eagle court reasoned that because courts have found that other sections of the TCPA apply to text messages, (d)(4) should also apply to text messages.  It therefore held that because the defendant had failed to show why (d)(4) should be treated any differently than the other provisions of 64.1200(d), the text messages that the plaintiff received fell under (d)(4)’s protections.

The Missouri Court is not alone in broadening its interpretation of the protections afforded by the TCPA to extend to text messages.  See Robison v. 7PN, LLC, 569 F. Supp. 3d 1175 (D. Utah 2021) (applying § 64.1200(d)(4) to text messages and allowing the plaintiff’s claim to move forward); Drew v. Lexington Consumer Advocacy, LLC, No. 16-cv-00200-LB, 2016 WL 1559717 (N.D. Cal. Apr. 18, 2016) (finding that text messages sent to the plaintiff that did not identify the entity sending the message violated § 64.1200(d)(4)); Grieben v. Fashion Nova, Inc., No. 22-cv-60908-BLOOM/Otazo-Reyes, 2022 WL 4598649 (S.D. Fla. Sept. 29, 2022) (finding that even though the statute has been silent as to text messages, the FCC, under its TCPA rulemaking authority, has applied the regulations of voice calls to text messages).

In contrast to this expansive view, the Western District of North Carolina dismissed a TCPA case for failing to state a claim under 47 U.S.C. § 227(c).  The Court held that the plaintiff’s cell phone was not considered a residential telephone under the TCPA.  Gaker v. Q3M Insurance Solutions et al., No. 3:22-CV-00296-RJC-DSC, slip op. (W.D.N.C. 2023).  In doing so, the court applied the Eleventh Circuit decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which held that the findings in the TCPA show a concern for privacy within the sanctity of the home, and cell phones present less potential for home intrusion.

In Gaker, the plaintiff alleged that though the plaintiff’s personal cell phone had been registered to the NDNCR in November 2019, the plaintiff began receiving unsolicited calls from the defendants after entering her contact information into a sweepstakes in January of 2020. She brought a claim under 47 U.S.C. § 227(c).

Though the Court acknowledged that the FCC has interpreted residential subscribers to include those who register their cell phone numbers on the NDNCR, it pointed to the current split among courts that have disagreed as to whether the TCPA extends to wireless telephone numbers.  The Court then took on its own analysis, starting first by considering the “clear text of the TCPA.”  It emphasized the definition of “residential” as “used by a residence” and “one who resides in a place.”  The Court also noted how Congress has referenced “cellular telephone” in other provisions of the statute, “evidencing that both Congress and the FCC were aware of the distinction between a cellular telephone and a residential telephone.”  In its analysis, the Court found that the language of the statute controverted the coverage of cell phones.

Next, the Court referred to the Eleventh Circuit’s decision in Salcedo v. Hannah, emphasizing its holding that the findings in the TCPA “show a concern for privacy within the sanctity of the home” while cell phones present less potential for nuisance and home intrusion.  936 F.3d 1162, 1168–69 (11th Cir. 2019).  The Court applied the Eleventh Circuit’s holding to the facts in Gaker, nothing that the ability to silence or decline calls on a cell phone “alleviate the concerns inherent with a home telephone.”  Gaker, No. 3:22-CV-00296-RJC-DSC, slip op., at *6 (W.D.N.C. 2023).  The Court found that because the plaintiff alleged no facts showing where she was when she received the calls or whether her phone was on silent, and chose not to answer four of the six calls, her claim that these calls invaded her privacy was diminished.

These two cases illustrate the uncertainty with respect to judicial interpretation of the TCPA in the realm of mobile devices and text messages.  But, both cases involve common TCPA issues that are routinely litigated and will surely arise again.  Thus, the long-term implications, both within their respective jurisdictions (the 8th and 11th Circuits) and in other District Courts wrangling with similar cases, remain to be seen.

William A. Wright

About the Author: William A. Wright

William Wright represents clients in connection with complex business disputes, consumer class actions and emerging e-discovery and information governance issues. His experience includes a broad range of representative matters, including contract disputes, statutory class actions and corporate governance investigations. Bill defends large institutional clients in commercial litigation and routinely manages subject matter experts and consultants. He has appeared in numerous state and federal courts, and before private arbitration panels.

Rachel A. Dansky

About the Author: Rachel A. Dansky

Rachel Dansky counsels clients in litigation and dispute resolution. While in law school, Rachel was an intern for Hon. J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania, where she researched legal issues and wrote memoranda, briefs and motions. She also drafted memoranda on topics such as: intervention in a declaratory judgment action, the enforcement of an arbitration clause in an employment discrimination case, transfer of venue, and orders for compassionate release.

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