Can telemarketers telephone solicit via text messages with impunity now? Probably not.
- Peter Schneider
- Jul 24
- 6 min read
Many telemarketers must be all abuzz today with the ruling in Jones, et al. v. Blackstone, 2025 WL 2042764 (C.D. Ill. July 21, 2025).
The case background is multiple plaintiffs sued Blackstone Medical Services LLC alleging violations the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(c) because they received telemarketing text messages and calls to their telephones from Blackstone. Defendant Blackstone is a Florida-based company that sells home sleep tests.
Specifically, the Plaintiffs allege2 Defendant Blackstone operates an aggressive telemarketing campaign where it repeatedly sends text messages and telephone calls to telephone numbers that have been placed on the National Do-Not-Call Registry for at least 30 days and over the messaged party’s objections in order to sell home sleep tests. After Plaintiff Steidinger’s telephone number was added to the National Do-Not-Call Registry and after he advised the Defendant he was not interested in its home sleep tests and repeatedly messaged Blackstone to “STOP”, the Defendant continued to place repeated telemarketing text messages. In Yelp reviews, other consumers complain about the Defendant’s aggressive telemarketing and failure to abide by “stop” requests.
Blackstone moved to dismiss the TCPA 47 U.S.C. § 227(c) claim, arguing the provision of the TCPA pursuant to which the Plaintiffs bring their claims, 47 U.S.C. § 227(c), does not prohibit text messages. Blackstone argues that the phrases “text message” and “SMS message” are wholly absent from Section 227(c)(5) and its implementing regulations, 47 C.F.R. § 64.1200(c) and (d). Indeed, only “call”, “telephone call”, and “artificial or prerecorded-voice telephone call” appear in Section 227(c) and its implementing regulations. 47 U.S.C. § 227(c)(1)(D), (c)(5); 47 C.F.R. § 64.1200(c)(2)(iii), (d).
You know how the first amendment doesn't mention emails or phone calls because they didn't exist when the constitution was written so the first amendment doesn't protect free speech via emails or phone calls? Oh wait, that didn't happen because laws are not necessarily inapplicable to new technology using existing infrastructure. Except for this patron saint of telemarketing.
While the Court affords a certain amount of respect to the FCC’s interpretation of the terms used in the TCPA, the fact remains that Section 227(c)(5) of the TCPA includes “telephone call” and does not mention text messages or SMS messages, and nowhere does the TCPA define “telephone call” to include text and/or SMS messages.
The court went on to dismiss the TCPA claim, and I expect this will go on appeal. God be with those appellant lawyers.
However, many federal judges do a little more critical thinking, and decision Wilson v. Skopos 2025 WL 2029274 (D. Or. July 21, 2025) came out the same day.
Some background, Mr. Wilson received four text messages from an auto-loan lender based in Texas. Someone may have created a loan request on LendingTree, and Skopos Financial d/b/a Reprise Financial pinged Mr. Wilson.
Mr. Wilson sued, asserting a claim under 47 U.S.C. § 227(c)(5) for violations of 47 C.F.R. § 64.1200(c). Skopos moved to dismiss, arguing Plaintiff has failed to state a claim for relief because: (1) the text messages at issue do not constitute "telephone solicitations" as defined by the TCPA and (2) § 227(c) creates a cause of action for "telephone calls," not text messages.
it contends that, because §(c)(5) explicitly references "telephone calls" in its cause of action, it does not allow for plaintiffs to bring TCPA claims based on text messages sent in violation of the DNC Registry. Specifically, Defendant argues that only Congress has the authority to dictate who has a cause of action under the TCPA and "there is absolutely no basis for the FCC's conclusion that Congress (in 1991) meant the term 'call' to mean 'text call.'" Defendant is incorrect. The cause of action provided in § 227(c)(5) includes text messages.
The court pointed out that the TCPA addresses two types of phone calls - those placed with regulated technology, and those placed with the intent to solicit. The law gave the FCC the authority to create regulations, and the FCC interpreted the law to apply to text messages.
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, (M.D.N.C. Aug. 12, 2024), report and recommendation adopted.
Skopos argued that the FCC didn't have the authority to find that text messages were calls, text messages aren't calls regulated by the TCPA, an argument that the court rejected. Defendant's argument that the FCC lacks authority to do so is undermine d 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.
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 privacy and 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. On this point, Defendant is without support. The Court concludes that unsolicited text messages sent in violation of the DNC Registry can give rise to a cause of action under § 227(c)(5).
I do expect the viewpoint that text messages are phone calls to win the day (and that viewpoint would take some effort to dislodge in the 9th circuit), but there is a huge amount of money behind telemarketing so they will never stop pushing the issue.
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
Comments