Topic: Class Actions

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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FCC Releases Declaratory Ruling Addressing the TCPA Compliance Status of Ringless Voicemails

On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Declaratory Ruling), in which it determined that “ringless voicemail” to wireless phones requires prior consumer consent to transmit because it is a “call” made using an artificial or prerecorded voice and thus is covered under section 227(b)(1)(A)(iii) of the 1991 Telephone Consumer Protection Act (TCPA). The Declaratory Ruling was issued even though the petitioner, All About the Message, LLC (AATM) had requested withdrawal of its 2017 Petition for Declaratory Ruling seeking to have the FCC declare that ringless voicemail, based on the technology and the lack of direct charge to wireless consumers, is not subject to the TCPA and the agency’s implementing rules. Addressing AATM’s withdrawal request, the FCC stated that it believed a ruling was necessary to resolve a controversy and remove uncertainty about the status of ringless voicemail under the TCPA.

Codified in section 227 of the Communications Act of 1934, the TCPA addresses certain practices considered to be an invasion of consumer privacy or, in some instances, a risk to public safety. Section 227(b)(1)(A)(iii) prohibits making any non-emergency call using an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. AATM sought an FCC ruling that delivery of a voicemail message directly to a consumer’s cell phone voicemail is not covered by the TCPA. AATM relied on several arguments, but primarily claimed that its ringless voicemail message was not a “call” because its proprietary software creates a landline-to-landline session directly to the telephone company’s voicemail server without charge to the subscriber and is not shown as a call on any consumer bill.

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