TCPAWorld
The World of the Telephone Consumer Protection Act
Gees keep up everyone!
Moments ago I told you to expect chaos as a district court just held (for the first time) SMS Messages are NOT subject to the TCPA’s DNC rules.
CHAOS: The First Court Just Found the TCPA’s DNC Rules Do Not Apply to Text Messages– So Let the Chaos Begin!
I told you other courts would disagree.
Didn’t realize another court already had. On the same day. hahah.
In Wilson v. Skopos 2025 WL 2029274 (D. Or. July 21, 2025) the court refused to dismiss an SMS TCPA DNC case holding that SMS messages ARE calls subject to the TCPA’s DNC rules.
The meat of the ruling is:
The TCPA generally targets two types of unsolicited phone calls: those made using automatic dialers, 42 U.S.C. § 227(b), and those made in contravention of do-not-call registries, 42 U.S.C. § 227(c). For both, Congress explicitly conferred on the FCC the authority to promulgate implementing regulations. See §§ 227(b)(2), 227(c)(1)–(4). Through those regulations, the FCC has expanded the TCPA to apply to text messages. First, § 227(b)’s protections against automatic dialers were clarified as applying to both telephone calls and text messages issued without the recipient’s consent. See 2003 Rules & Reguls., 18 F.C.C. Rcd. at 14115 (“We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number…. This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls …. Congress found that automated or prerecorded telephone calls were a greater nuisance and invasion of privacy than live solicitation calls.”); In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 ¶ 107 (July 10, 2015) (“Glide raises the issue of whether SMS text messages are subject to the same consumer protections under the TCPA as voice calls. We reiterate that they are.”); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“a text message is a ‘call’ within the meaning of the TCPA”); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”). Recently, the FCC clarified “that text messages are included in the TCPA prohibitions and the private right of action in § 227(c)(5).” See Hudson v. Palm Beach Tan, Inc., No. 1:23CV486(WO) (JEP), 2024 WL 4190513, at *8 (M.D.N.C. Aug. 12, 2024), report and recommendation adopted, No. 1:23 CV-486, 2024 WL 4188310 (M.D.N.C. Sept. 13, 2024). Indeed, in 2024, the FCC explained: “The Commission adopts the proposal to codify the National DNC Registry’s existing protections to text messages. Texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry.” Targeting and Eliminating Unlawful Text Messages, Implementation of the Telephone Consumer Protection Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls, 89 Fed. Reg. 5098, 5101, 5099 (Jan. 26, 2024). Defendant’s argument that the FCC lacks authority to do so is undermined by the statutory structure of the TCPA, which explicitly delegates such authority, as well as the vast applicable case law which abides by the FCC’s regulations and guidance. Moreover, the FCC’s decision to include text messages is congruent with Congress’s overarching goals for the TCPA. Congress enacted the TCPA “to address a growing number of telephone marketing calls and certain telemarketing practices thought to be an invasion of consumer privacyand even a risk to public safety.” 2003 Rules & Reguls., 18 F.C.C. Rcd. at 14018. Section 227(c) specifically targets “the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.” § 227(c)(1). With those goals in mind, the “basis” for the FCC’s conclusion becomes abundantly clear: unsolicited text messages invade the privacy and disturb the solitude of their recipients. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). They should therefore be included within the purview of the DNC Registry’s protections. The mere fact that Congress did not envision the ubiquitousness of text messaging in 1991 does not mean the FCC’s conclusion lacks support. On the contrary, as technology has developed over the years, so too has our understanding of the TCPA’s protections. See 2003 Rules & Reguls., 18 F.C.C. Rcd. at 14017 (“significant changes in the technologies and methods used to contact consumers … warrant modifications to our existing rules, and adoption of new rules if consumers are to continue to receive the protections that Congress intended to provide when it enacted the TCPA”). It cannot be argued in good faith that text messages are so categorially different from phone calls that the former cannot be considered an invasion of consumer privacy when directed at numbers on the DNC Registry”
Absolutely wild.
One court finds SMS messages are not subject to the TCPA’s DNC rules. Another court finds its not even a good faith argument to say SMS messages are not subject to the TCPA’s DNC rules– on the same day.
CHAOS.
Madness.
Chaos.
Madness.
Buckle up.
The Wilson ruling is also interesting because the messages appear to be transactional in nature but the court held they were marketing anyway. The messages read:
Plaintiff apparently claimed he did not fill out the lead form on LendingTree and the court found the message was marketing in nature.
The Court did not apply my big win in Aderhold here– that case held transactional messages are NOT marketing in nature. The Court’s analysis on the issue is thin.
Suffices to say very few lawyers can walk in the Czar’s footsteps… only I can win cases like this, it seems. (Kidding, but maybe not.)
Anyway take aways:
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Chat soon.
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The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues. View all posts by Eric J. Troutman
Let’s face it; very, very, very few can walk in the Czar’s boots.
Correct me if I’m wrong, but this court didn’t cite Mcclaughlin.
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CHAOS CHAOS: A different Court Holds SMS Messages ARE Subject to TCPA DNC Protections– On the SAME DAY A Different Court Disagreed – TCPAWorld
