- with readers working within the Consumer Industries industries
Following the United States Supreme Court's decision in McLaughlin v. McKesson, several courts have ruled on the issue of whether text messages are telephone calls for Telephone Consumer Protection Act (“TCPA”) purposes. Confronted with this very issue in a TCPA case in which the defendant filed a motion to dismiss, a Georgia federal judge recently issued a decision. We discuss the decision in detail below and its significance for telemarketing companies.
Text Messages ≠ Telephone Calls Under the TCPA, Georgia Federal Judge Rules
Ethan Radvansky (“Plaintiff”), on behalf of himself and a putative class, filed a lawsuit against defendant 1-800-FLOWERS (“Defendant”) in the Northern District of Georgia alleging TCPA violations for the receipt of unsolicited commercial text messages. Plaintiff, whose phone number was registered on the National Do Not Call Registry, asserted that Defendant delivered text messages to his phone advertising its flower business. As a result, Plaintiff filed a lawsuit against Defendant in a Georgia federal court asserting a single TCPA cause of action. In response, Defendant filed a motion to dismiss arguing, among other things, that 47 U.S.C. § 227(c)(5), the provision of the TCPA which affords a private right of action, does not apply to text messages.
Noting that courts around the country are split on the issue of whether text messages are telephone calls, the judge chose to follow the holdings in three Florida district court proceedings which concluded that “telephone call” in § 227(c)(5) does not include text messages (note that, Georgia and Florida are in the same Circuit). According to the judge's reasoning, the statutory language makes clear that only telephone calls, not text messages, are actionable under § 227(c)(5). Citing the analysis of a different Georgia judge, the Court stated that “Congress has amended the TCPA as recently as 2019 to add the phrase ‘text message' in a neighboring provision . . . and chose to leave § 227(c)(5) unamended.” Because of this distinction, the Court determined that Congress intended for the provision to encompass only telephone calls and not text messages. Accordingly, the judge granted Defendant's motion to dismiss Plaintiff's TCPA claim.
What Does the Georgia TCPA Decision Mean for You?
This Georgia TCPA decision is now the fourth district court in the 11th Circuit (comprised of Alabama, Florida, and Georgia) to rule that text messages are not telephone calls for TCPA purposes. Although, as noted above, some courts in other jurisdictions have reached a contrary conclusion, district courts in the 11th Circuit, at least so far, appear to unanimously agree that text messages are not telephone calls under the TCPA.
As always, best practices include, among other things, obtaining consumers' prior express consent to the receipt of marketing text messages and quickly honoring consumers' requests to opt-out from the receipt of future marketing-related text messages. Implementing policies and procedures for TCPA (and related state telemarketing law) compliance requires the guidance of attorneys who are at the forefront of the latest developments in the telemarketing law space. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on federal and state telemarketing law compliance; and (2) aggressively defend companies named as defendants in TCPA lawsuits.
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