On August 26 2025, the United States District Court for the Northern District of Florida issued a useful decision for companies contesting National Do Not Call ("DNC") claims. In Davis v. CVS Pharmacy, Inc., the Court granted Defendant's Motion to Dismiss, finding that Plaintiff had not plausibly alleged that Defendant had placed multiple calls in violation of the Telephone Consumer Protection Act ("TCPA"). As our readers are aware, the TCPA generally prohibits companies from placing telemarketing calls to consumers who have registered their telephone numbers on the National Do Not Call list. These DNC Call rules are strictly enforced and also serve as the basis of many TCPA private rights of action.
In its Motion, Defendant argued that Plaintiff's Complaint should be dismissed because: 1) text messages do not constitute telephone calls for DNC purposes; and 2) a cell phone subscriber is not a residential telephone subscriber. The Court declined to address Defendant's latter argument, but did conclude that DNC call rules do not apply to text messages. Accordingly, the Court dismissed Plaintiff's Complaint. Davis is noteworthy because it continues a recent trend of courts declining to follow Federal Communications Commission ("FCC") guidance in the wake of McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp.
How Did the Court Interpret the Breadth of the DNC Call Rules?
The TCPA's DNC provisions create a private right of action for individuals who: 1) have registered their telephone numbers on the National DNC registry; and 2) receive more than one telephone call from a seller within a 12-month period. Plaintiff alleged that he received multiple text messages from Defendant advertising its products and services. Plaintiff argued that text messages are covered by the DNC call rules, and thus, Defendant violated the TCPA's DNC Rule provisions.
The Court disagreed. In its decision, it relied on two primary lines of reasoning:
- The ordinary public meaning of the term "telephone call" does not include text messages. As the Court noted, "[n]o ordinary user of the English language would write the sentence 'John called Sue' intending to mean 'John sent a text message to Sue.'" As such, the Court concluded that no ordinary person would interpret a text message to mean a "telephone call."
- The phrase "telephone call or message" appears in a separate provision of the TCPA. According to the Court, this supports the inference that Congress did not intend the term "telephone call" to encompass all "messages." As the Eleventh Circuit noted, when a statute uses a term in one place and a distinct term elsewhere, the distinct terms have different meanings.
For his Complaint to survive dismissal, Plaintiff would have had to allege the receipt of at least two calls from a telemarketer in violation of the DNC Rule. Because he claimed that he only received text messages, his Complaint was dismissed for failure to state a claim.
Why Does Davis Matter to Your Business?
In the wake of Winthrop, more and more district courts are deciding TCPA claims using ordinary principles of statutory interpretation instead of relying on FCC guidance. Jones v. Blackstone Med. Servs., LLC, had also previously determined that text messages do not constitute calls for DNC purposes. As the Court noted in Davis, it is possible to pay "appropriate respect" to the FCC's view without interpreting the TCPA in a manner that conflicts with ordinary public meaning.
Against this backdrop, it is important that businesses consult experienced telemarketing attorneys to explore previously untenable defenses. Over the past several decades, the attorneys at Klein Moynihan Turco have defended countless TCPA claims on behalf of the telemarketing industry.
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