For the first time, a federal appellate court has ruled that the Telephone Consumer Protection Act’s (TCPA) “do not call” provisions mean exactly what they say: the National Do Not Call Registry applies only to telephone calls, not text messages. In a closely watched decision, the U.S. Court of Appeals for the Seventh Circuit concluded that text messages do not qualify as “calls” for the purposes of private rights of action brought under Section 227(c)(5) of the TCPA, significantly narrowing the scope of those claims. The ruling creates a likely circuit split. The U.S. Court of Appeals for the Ninth Circuit previously interpreted the TCPA’s “do not call” provisions to encompass text messages, setting the stage for a disagreement among the federal appellate courts that could ultimately be resolved by the U.S. Supreme Court.
The Seventh Circuit’s decision is not yet final. The plaintiffs may still seek rehearing before the full Seventh Circuit panel of judges or petition the U.S. Supreme Court to review the case, arguing that the decision conflicts with the Ninth Circuit’s interpretation of the TCPA. In the meantime, independent dealers should continue following their existing compliance practices to minimize TCPA risk. This includes using dealer management and customer relationship management systems to scrub outbound calling campaigns against the National Do Not Call Registry, maintaining internal do-not-call lists, and adhering to established consumer contact policies. Dealers should also be mindful that state TCPA-style laws are likely to take on greater significance, potentially creating additional compliance obligations and increasing the overall regulatory burden on dealerships that rely heavily on telemarketing.
