McMiller Manny

Emanuel L. McMiller

Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients to achieve their goals and avoid disruption.

View the full bio for McMiller Manny at the Faegre Drinker website.

Articles by McMiller Manny:


Ohio Federal Court Rules TCPA’s DNC Provision Doesn’t Permit Text Message Lawsuits

A federal judge in the Northern District of Ohio recently held that text messages are not subject to the TCPA’s Do-Not-Call provision because they are not “calls” within the meaning of the statute. Stockdale v. Skymount Prop. Grp., LLC, et al., 2026 WL 591842 (N.D. Ohio Mar. 3, 2026).

In Stockdale, Plaintiff alleged that she received text messages from Defendants for several years after she placed her phone number on the National Do-Not-Call Registry. Defendants moved to dismiss, arguing that the complaint did not state a cognizable claim under the TCPA because the plain language of Section 227(c)(5) is limited to “telephone calls” and does not include text messages.

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Courts in Eleventh Circuit Find No Private Right of Action Under 227(c) for Texts

District courts in the Eleventh Circuit are increasingly finding that the private right of action for violation of the TCPA’s Do-Not-Call provisions does not apply to text messages. More recently, three judges in that Circuit dismissed claims under 47 U.S.C. § 227(c)(5), holding that the statute’s reference to “telephone calls” does not extend to text messages. See Radvansky v. Kendo Holdings, Inc., 23-0214, Dkt. 57 (N.D. Ga. Feb. 12, 2026) (May, C.J.) (entering judgment on the pleadings; this decision is now on appeal before the Eleventh Circuit); Radvansky v. 1-800-Flowers.com, Inc., 2026 WL 456919, at *3-5 (N.D. Ga. Feb. 17, 2026) (Thrash, J.) (granting motion to dismiss); Lopresti v. Nouveau Essentials Mktg. LLC, 2026 U.S. Dist. LEXIS 39599, at *6-13 (M.D. Fla. Feb. 26, 2026) (Lammens, M.J.) (recommendation to enter judgment on the pleadings). The Lopresti court also dismissed a claim under Section 227(b), which restricts the use of automated telephone equipment, for the same reason. Lopresti, 2026 U.S. Dist. LEXIS 39599, at *11-12.

These decisions are consistent with several earlier decisions in the Eleventh Circuit and one in the Central District of Illinois. See McGonigle v. Pure Green Franchise Corp., 2026 WL 111338 (S.D. Fla. Jan. 15, 2026) (Singhal, J.) (granting motion to stay discovery pending resolution of motion to dismiss); El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025) (Merryday, J.) (granting motion to dismiss); Davis v. CVS Pharm., Inc., 797 F.Supp.3d 1270, 1272 (N.D. Fla. 2025) (Winsor, C.J.) (granting motion to dismiss); see also Jones v. Blackstone Med. Servs., LLC, 792 F.Supp.3d 894 (C.D. Ill. 2025) (Hawley, J.) (granting motion to dismiss; this decision is now on appeal before the Seventh Circuit).

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Florida Federal Court Stays Discovery Pending Decision on Whether Texts Qualify as Calls Under TCPA

A judge in the Southern District of Florida recently granted a defendant’s motion to stay discovery in a case involving alleged violations of the Telephone Consumer Protection Act (TCPA), pending resolution of the defendant’s motion to dismiss arguing that a text is not a “call” within the meaning of the TCPA. See McGonigle v. Pure Green Franchise Corp., 2026 WL 111338 (S.D. Fla. Jan. 15, 2026).

The court explained that “resolv[ing] the issue of whether § 227(c) [of the TCPA] includes a cause of action for text messages by exercising our ‘special competence in resolving statutory ambiguities’” is “a question of law that does not require discovery.” Id. at *2.

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Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages

A judge in the Middle District of Florida recently dismissed Do-Not-Call claims under the TCPA, holding that “a text message is not a telephone call.” El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).

The court explained that “it is only th[r]ough the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages. … However, a District Court is not bound by the FCC’s interpretation of the TCPA.” Id. at 1.

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Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages

A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).

In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).

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Florida Federal Court Finds Air Conditioning Company’s Pre-Hurricane “Here for You” Text Was a Solicitation

A Florida federal court recently denied a defendant’s motion for summary judgment in a putative class action, finding that the text message at issue was not “purely informational” but rather a solicitation for purposes of the plaintiff’s do-not-call claim. Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).

Shortly before Hurricane Ian’s landfall in Florida, the plaintiff received the following text:

Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. [Phone Number] STOP to end.

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McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts

A federal court recently dismissed Do-Not-Call claims after finding that, “based on a plain reading of the TCPA and its implementing regulations,” 47 U.S.C. § 227(c) “does not apply to text messages.” Jones v. Blackstone Med. Servs., LLC, No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).

In Jones, the plaintiffs alleged that they had received telemarketing texts about the defendant’s home sleep tests, despite their having placed their numbers on the National Do-Not-Call Registry and/or asking to be placed on the defendant’s Do-Not Call list. (Although they also made passing references to “calls” as well as “texts,” the court found that those allegations were neither well pleaded nor the crux of the claim.) They filed suit under 47 U.S.C. § 227(c), which concerns violations of Do-Not-Call rules.

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FCCPA Amended to Expressly Allow After-Hours Debt-Collection Emails

Florida’s governor recently signed Senate Bill 232, amending Fla. Stat. § 559.72(17). Subsection 17 prohibits certain debt-collection “communications” to debtors between 9 p.m. and 8 a.m. Senate Bill 232 now clarifies that Subsection 17 does not apply to emails, ending the ambiguity that litigants faced due to differing court decisions. Given the proliferation of debt collection emails — which are used by 74% of debt collectors — Senate Bill 232’s enactment cuts off a significant source of potential liability.

Read the full article on the Faegre Drinker website

FTSA’s Application to Nonprofits Remains Unsettled as Florida’s Legislative Session Will End Without Remedial Legislation

At a Glance

  • Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
  • The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
  • The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
  • Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.

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Texas Federal Court Finds Prerecorded Calls to Schedule Pest Inspections Were Informational, Not Telemarketing

A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.

In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.

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