Florida Court Limits TCPA Do-Not-Call Protections for Cellphones and Texts

A Florida federal judge has pushed back on a long-standing interpretation of the TCPA’s Do-Not-Call rules.

In a September 11 ruling, the U.S. District Court for the Southern District of Florida found that the Do-Not-Call protections at issue did not apply to a cellphone. The court also separately found that text messages did not qualify as “telephone calls” under the part of the law used by the plaintiff.

The decision came in Michael Anthony v. Brian Marketing Group, a case involving alleged marketing texts sent to a number registered on the National Do-Not-Call Registry.

Five Text Messages Lead to TCPA Claim

The plaintiff alleged that he received five unsolicited text messages over a 12-month period. The messages promoted the availability of drug or alcohol treatment services and directed him to different callback numbers.

According to the complaint, his cellphone number was listed on the National Do-Not-Call Registry, and he had not given permission to receive the messages.

The lawsuit was brought under Section 227(c)(5) of the Telephone Consumer Protection Act, or TCPA. That section allows certain lawsuits based on violations of rules designed to protect residential telephone subscribers from unwanted solicitations.

Brian Marketing Group did not respond to the lawsuit. After the court clerk entered a default, the plaintiff asked the court for a final default judgment, which would have allowed the case to be decided in his favor without a trial.

Judge Aileen Cannon denied that request.

Court Questions Whether a Cellphone Is a Residential Line

A central issue was the TCPA’s use of the term “residential telephone subscribers.”

Since 2003, the Federal Communications Commission has taken the position that wireless subscribers who place their numbers on the National Do-Not-Call Registry can be treated as residential subscribers. The FCC said this approach allowed wireless users to receive the broader protections of the TCPA.

The Florida court did not follow that interpretation.

The court found that Congress specifically used the term “residential telephone subscribers” in Section 227(c), while other portions of the TCPA separately refer to cellular telephone services. Based on that distinction, the court concluded that the Do-Not-Call section at issue did not cover cellular subscribers.

The court also found that the FCC went beyond the authority given to it under Section 227(c) when it treated cellphone users as residential subscribers for these purposes.

Text Messages Raise a Second Issue

The cellphone question was not the court’s only reason for denying the plaintiff’s request.

As a separate basis for its decision, the court found that the term “telephone call” in Section 227(c)(5) does not include text messages. The court relied in part on recent reasoning from the Seventh Circuit, which concluded that the term, as used in this part of the TCPA, referred to voice calls rather than text messages.

That distinction matters because Section 227(c)(5) gives consumers a private right to sue after receiving more than one “telephone call” that violates regulations issued under that section.

Ruling Does Not Remove All TCPA Protections for Cellphones

The decision does not mean that cellphones are outside the TCPA entirely.

Other portions of the law expressly address calls made to cellular telephone numbers, including certain calls made using automated equipment or an artificial or prerecorded voice.

The Florida ruling also does not create a nationwide rule on whether cellphones qualify as residential numbers under the Do-Not-Call provisions. Other courts have accepted the FCC’s position that wireless numbers can receive those protections. The Ninth Circuit, for example, has recognized the FCC’s presumption that cellphone numbers registered on the National Do-Not-Call Registry are residential.

The decision therefore adds another view to an issue courts continue to address as they interpret how the TCPA’s older language applies to modern cellphone use and text messaging.