Unreported / Non-Citable
Background
Ralph Feliciano sued Red McCombs Hyundai Northwest GP, L.L.C., alleging that the dealership used automated telephone equipment to make prerecorded solicitation calls and send telemarketing text messages to his cellphone without consent, even though his number was registered on the National Do-Not-Call Registry. He asserted claims under the Telephone Consumer Protection Act, including 47 U.S.C. § 227(c)(5).
McCombs moved for judgment on the pleadings as to Count II, which concerned the text messages. It argued that the statutory phrase “telephone call” in § 227(c)(5) does not include text messages and therefore cannot support a private do-not-call claim based on texts.
The Court’s Holding
The court denied McCombs’s motion. It held that “telephone call” under the TCPA encompasses text messages and that telemarketing texts received on a cellphone registered on the National Do-Not-Call Registry are actionable under § 227(c)(5).
The Fifth Circuit had not resolved the issue, and the court acknowledged a developing split among district and circuit courts. It found persuasive the authorities from Texas district courts and elsewhere within the Fifth Circuit holding that the TCPA applies to text messages.
The court declined to follow the Seventh Circuit’s contrary decision in Steidinger v. Blackstone Medical Services, which held that § 227(c)(5)’s private right of action covers telephone calls but not text messages. Because Feliciano’s text-message theory was legally cognizable, McCombs was not entitled to judgment on the pleadings.
Key Takeaways
- A telemarketing text message can qualify as a “telephone call” under 47 U.S.C. § 227(c)(5).
- The court allowed Feliciano’s TCPA do-not-call claim concerning text messages to proceed beyond the pleadings.
- The decision follows district-court authority within the Fifth Circuit and rejects the Seventh Circuit’s narrower interpretation.
Why It Matters
The ruling supports the availability of TCPA claims when an entity sends repeated telemarketing texts to a number on the National Do-Not-Call Registry. Within the Western District of Texas, defendants cannot obtain judgment on the pleadings merely by arguing that § 227(c)(5) categorically excludes text messages.
The opinion also highlights an unresolved interpretive divide among courts. Until the Fifth Circuit addresses the issue, TCPA liability for do-not-call text messages may continue to depend on the jurisdiction hearing the case.