7th Circ. Ruling May Reduce Litigation Risk for Text Marketers

Litigation attorneys Cory Eichhorn and Jefflyne Desilme wrote an article for Law360 analyzing a federal appellate ruling that unwanted text messages are not telephone calls under Section 227(c)(5) of the Telephone Consumer Protection Act (TCPA). In Steidinger v. Blackstone Medical Services, the U.S. Court of Appeals for the Seventh Circuit reasoned that 1) the ordinary public meaning of "telephone call" when the TCPA was enacted referred to voice-based communications, not written text messages, 2) other parts of the law reference "telephone solicitation," indicating Congress deliberately chose a narrower term when it used "telephone call," 3) the U.S. Supreme Court's decision in McLaughlin Chiropractic Associates Inc. v. McKesson Corp. limited judicial deference to Federal Communications Commission (FCC) interpretations, and 4) prior related cases involved different provisions with different statutory language.

Cory and Jefflyne highlight that the decision is a favorable development for companies that engage in text message marketing or regularly send text messages to consumers, now that plaintiffs within the Seventh Circuit can no longer pursue "do not call" claims under Section 227(c)(5) and the ruling eliminates a commonly cited theory in class actions. The authors, caution, however, that the decision only applies in the Seventh Circuit – Illinois, Indiana and Wisconsin – and that the TCPA provides a separate private right of action under Section 227(b)(3). The article concludes that though Steidinger reduces litigation exposure and provides a framework for defendants to cite in other circuits, businesses should still proceed with caution, given other options for pursuing TCPA claims and the need to comply separately with state consumer protection laws.

READ: 7th Circ. Ruling May Reduce Litigation Risk for Text Marketers