5
New Articles
Find Your Next Job !
Happy Labor Day everyone!
Really big news from the Chief Judge of the Northern District of Florida– the Hon. Allen Winsor: text messages are not “calls” for purposes of the TCPA’s DNC provisions.
The case is Davis v. CVS Pharmacy, Inc. 2025 WL 2491195 (N.D. Fl. Aug. 26, 2025) and it is sure to raise eyebrows across the country.
Backing up, the TCPA’s DNC provisions prohibit telephone solicitations to residential subscribers who list their numbers on the federal DNC registry.
In Davis, CVS allegedly sent promotional text messages to the Plaintiff without an EBR or consent. Plaintiff sued in a class action under the TCPA seeking to recover millions (or more) for people who received similar text messages.
But is a text message a “call” that can qualify as a telephone solicitation to begin with?
Dozens of courts– including seemingly the Eleventh Circuit Court of Appeals– have said “yes” but all of those courts relied upon FCC rulings that are no longer binding following the recent SCOTUS decision in McKesson.
So the courts are now mostly free to blaze their own paths and while a handful of courts have already held SMS messages ARE still subject to the TCPA’s DNC provisions at least one court has said otherwise.
And now, two courts have.
In Davis v. CVS, the court’s analysis was succinct as it is sound:
“[N]o ordinary person would think of a text message as a “telephone call.” This conclusion —supported by the ordinary public meaning at the time of the provision’s enactment—is enough to end this case.”
Wow.
Well that was easy.
The court goes on to explain that neither the Supreme Court (agree) or the Eleventh Circuit (disagree) have held text messages are “calls” under the TCPA. And then it drops this nice little analytic widget:
Congress’s use of the phrase “telephone call or message” in a neighboring provision only undermines Davis’s position. It shows that Congress does not use the term “telephone call” to encompass all “messages.” Although Davis would have me conclude Congress used the term “telephone call” in § 227(c)(5) and the term “telephone call or message” in § 227(a)(4) to have identical meanings, courts should “presume that, when a statute uses one term in one place and a distinct term elsewhere, the difference matters—that is, the distinct words have different meanings.”
That’s what I’ve been saying!
Horray!
This is a great win and one that may span the test of time.
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2025 National Law Forum, LLC
Find Your Next Job !
Happy Labor Day everyone!
Really big news from the Chief Judge of the Northern District of Florida– the Hon. Allen Winsor: text messages are not “calls” for purposes of the TCPA’s DNC provisions.
The case is Davis v. CVS Pharmacy, Inc. 2025 WL 2491195 (N.D. Fl. Aug. 26, 2025) and it is sure to raise eyebrows across the country.
Backing up, the TCPA’s DNC provisions prohibit telephone solicitations to residential subscribers who list their numbers on the federal DNC registry.
In Davis, CVS allegedly sent promotional text messages to the Plaintiff without an EBR or consent. Plaintiff sued in a class action under the TCPA seeking to recover millions (or more) for people who received similar text messages.
But is a text message a “call” that can qualify as a telephone solicitation to begin with?
Dozens of courts– including seemingly the Eleventh Circuit Court of Appeals– have said “yes” but all of those courts relied upon FCC rulings that are no longer binding following the recent SCOTUS decision in McKesson.
So the courts are now mostly free to blaze their own paths and while a handful of courts have already held SMS messages ARE still subject to the TCPA’s DNC provisions at least one court has said otherwise.
And now, two courts have.
In Davis v. CVS, the court’s analysis was succinct as it is sound:
“[N]o ordinary person would think of a text message as a “telephone call.” This conclusion —supported by the ordinary public meaning at the time of the provision’s enactment—is enough to end this case.”
Wow.
Well that was easy.
The court goes on to explain that neither the Supreme Court (agree) or the Eleventh Circuit (disagree) have held text messages are “calls” under the TCPA. And then it drops this nice little analytic widget:
Congress’s use of the phrase “telephone call or message” in a neighboring provision only undermines Davis’s position. It shows that Congress does not use the term “telephone call” to encompass all “messages.” Although Davis would have me conclude Congress used the term “telephone call” in § 227(c)(5) and the term “telephone call or message” in § 227(a)(4) to have identical meanings, courts should “presume that, when a statute uses one term in one place and a distinct term elsewhere, the difference matters—that is, the distinct words have different meanings.”
That’s what I’ve been saying!
Horray!
This is a great win and one that may span the test of time.
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2025 National Law Forum, LLC