7th Circuit rules that unwanted marketing texts cannot be sued over under TCPA Section 227(c)(5)…

Record source: CourtListener

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2398 SETH STEIDINGER, et al., Plaintiffs-Appellants, v. BLACKSTONE MEDICAL SERVICES, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 1:24-cv-01074 — Jonathan E. Hawley, Judge. ____________________ ARGUED MAY 21, 2026 — DECIDED JULY 14, 2026 ____________________ Before KIRSCH, PRYOR, and MALDONADO, Circuit Judges. KIRSCH, Circuit Judge. Frustrated by an onslaught of mar- keting text messages from Blackstone Medical Services, the plaintiffs filed a consolidated class action complaint alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Florida Telephone Solicitation Act, Fla. Stat. § 501.059(5). Blackstone moved to dismiss the TCPA claims. It argued principally that § 227(c)(5), the provision on which the plaintiffs relied, only creates a private right of ac- 2 No. 25-2398 tion for phone calls, not text messages. The district court agreed and dismissed the case after declining to exercise sup- plemental jurisdiction over the remaining state-law claim. On appeal, we consider whether § 227(c)(5)’s reference to un- wanted telephone calls extends to text messages. Because we conclude that § 227(c)(5) does not permit plaintiffs to sue for the receipt of unwanted texts, we affirm. I The plaintiffs are individuals who received marketing text messages and calls from Blackstone Medical Services, urging them to buy the company’s home sleep tests. The plaintiffs assert that they continued to receive these texts and calls even though they indicated (e.g., by replying “STOP” to a text mes- sage or by adding themselves to the National Do-Not-Call Registry) that they did not want to be contacted. They there- fore filed a consolidated class action complaint against Black- stone, alleging violations of the Telephone Consumer Protec- tion Act, 47 U.S.C. § 227, and the Florida Telephone Solicita- tion Act, Fla. Stat. § 501.059(5), seeking monetary, injunctive, and declaratory relief. Blackstone moved to dismiss the plaintiffs’ TCPA claims, arguing that the provision under which they filed suit, 47 U.S.C. § 227(c)(5), does not apply to text messages. The dis- trict court agreed with Blackstone. The court found that § 227(c)(5), which creates a private right of action for those who have received unwanted telephone calls, does not cover text messages. Because the crux of the consolidated class ac- tion complaint was the receipt of numerous text messages, the district court concluded that the plaintiffs failed to state No. 25-2398 3 claims for violations of the TCPA. * The court declined to ex- ercise supplemental jurisdiction over the remaining FTSA claim and dismissed the plaintiffs’ suit. II A We review a district court’s decision to dismiss a com- plaint, along with issues of statutory interpretation, de novo. Nat’l Shopmen Pension Fund v. DISA Indus., Inc., 653 F.3d 573, 578 (7th Cir. 2011). This appeal turns on a single issue: whether text messages are telephone calls within the meaning of § 227(c)(5). Based on the ordinary public meaning of tele- phone call at the time of the TCPA’s enactment, as well as the context provided by surrounding provisions of § 227, we find that texts are not calls, so § 227(c)(5) does not authorize the plaintiffs’ suit. We start with the statute’s text, interpreting it “in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton County, 590 U.S. 644, 654 (2020). Section 227(c)(5) creates a private right of action for an individual “who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsec- tion[.]” 47 U.S.C. § 227(c)(5) (emphasis added). It’s undis- puted that “telephone call” couldn’t have been thought to cover text messages when the TCPA was enacted in 1991, be- * The plaintiffs didn’t contend below or on appeal that their suit could proceed based on the alleged calls alone, so that argument is waived and we do not consider it. See Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th Cir. 1997) (finding it “axiomatic that arguments not raised below are waived on appeal”) (citation modified). 4 No. 25-2398 cause the first text message was not sent until the following year. See Blow v. Bijora, Inc., 191 F. Supp. 3d 780, 786 n.3 (N.D. Ill. 2016) (noting that the first text message was sent in Decem- ber 1992). Blackstone thus argues that the ordinary public meaning of telephone call can’t encompass a text message. But “[w]hile every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world.” Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018). So, for in- stance, “‘money’ … must always mean a ‘medium of ex- change,’” but “what qualifies as a ‘medium of exchange’ may depend on the facts of the day.” Id. (giving, as an example of money, electronic transfers of paychecks). With that principle in mind, we consider what telephone call meant in 1991. The TCPA doesn’t offer a definition, so we turn to contemporaneous dictionary definitions for guidance. See Delaware v. Pennsylvania, 598 U.S. 115, 127–28 (2023). Then, a telephone was “[a]n instrument for reproducing sounds at a distance[.]” Telephone, Webster’s Ninth New Collegiate Dic- tionary (1991). And a call meant “to get or try to get into com- munication by telephone.” Call, id. Thus, in 1991, a “telephone call” referred to communication via sound. Text messages do not reproduce sounds, suggesting that they do not qualify as a new application of telephone call within the meaning of that term. See Wis. Cent. Ltd., 585 U.S. at 284. The plaintiffs reject this conclusion and advocate for a broader meaning of telephone call, which would encompass all communications by telephone. Otherwise, they argue, the TCPA’s protections will become increasingly ineffectual as new technologies emerge. Though the plaintiffs are correct that § 227(c)(5) covers more than telephone calls as they ex- No. 25-2398 5 isted in 1991 (when such calls were often to landlines), we are cognizant that “[t]oo much ‘liberality’ will undermine the statute as surely as too literal an interpretation would.” Matter of Erickson, 815 F.2d 1090, 1094 (7th Cir. 1987). We’ve therefore rejected “the march of technology” standing alone as suffi- cient to identify the meaning of statutory language. Id. The provisions surrounding § 227(c)(5) provide further evidence that it doesn’t create a private right of action for text messages. Sections 227(c)(1) and (c)(2) direct the Federal Com- munications Commission to engage in rulemaking “to protect residential telephone subscribers’ privacy rights to avoid re- ceiving telephone solicitations to which they object.” 47 U.S.C. § 227(c)(1) (emphasis added). And § 227(c)(3) and (c)(4) dis- cuss the creation of a national database of individuals “who object to receiving telephone solicitations,” i.e., the creation of the National Do-Not-Call Registry. Id. § 227(c)(3) (emphasis added). We note that these other subsections of § 227(c) consist- ently use the term “telephone solicitation,” which the TCPA defines as “the initiation of a telephone call or messag

Official opinion source