On September 21, the Eastern District of Wisconsin denied a motion to partially dismiss a class action complaint alleging violations of the Telephone Consumer Protection Act (TCPA), holding that the Do Not Call provision of the TCPA applies to text messages.

In Reimer v. Kohl’s, Inc., the plaintiff provided his cell phone number to the defendant to receive promotional text messages. Later, the plaintiff decided to opt out of receiving text messages. In May 2022, August 2022, and October 2022, the plaintiff informed the defendant in writing that he no longer wished to receive the promotional text messages. The plaintiff also requested a copy of the defendant’s do-not-call policy. Despite the written requests, the defendant allegedly sent at least seventy-four text messages after the plaintiff’s initial May 2022 request for cessation.

The plaintiff filed a putative class action asserting three claims for relief, including a claim under 47 C.F.R. § 64.1200(c)(2) (the DNC provision) for the defendant’s alleged refusal to cease communications with the plaintiff after request and while the plaintiff’s number was on the National Do Not Call Registry (DNC) (Count I). The defendant moved to dismiss Count I on the basis that the DNC provision does not apply to text messages.

In support of its motion to dismiss, the defendant cited to an April 7, 2023, notice of proposed rulemaking (the Notice) issued by the Federal Communications Commission (FCC), where comments were sought regarding extending the DNC protections to marketing text messages. The defendant asserted that the plain reading of the Notice indicated that since text messages were not explicitly included in the DNC rules, the DNC provision did not currently apply to text messages. In response, the plaintiff claimed the purpose of the Notice was simply to clarify that text messages were covered by the DNC provision. The plaintiff further relied on the TCPA’s definition of telephone solicitation as a “telephone call or message,” and cited to case law predating the Notice which held that text messages were subject to the DNC provision.

The court determined that the ultimate question was whether the Notice served as a clarification of existing law or a substantive change to the law. In making this determination, the court applied the Seventh Circuit’s test of reviewing the regulatory record, with the additional context that the strongest indicator of substantive change is inconsistency with a previously stated position. The court cited to decisions published after the issuance of the Notice which held that the DNC provision applied to text messages, as well as to a litany of cases prior to the Notice which held the same.

Ultimately, the court agreed with the plaintiff that the Notice clarified a point of existing law and concluded that “[b]y exempting text messages in certain areas of § 64.1200, the FCC has implicitly stated that text messages are already included.” Further factoring in the lack of an effective date, and the language of the Notice indicating a desire to “further” protect consumers, the court determined that in making explicit what was already implicit, the Notice served merely as a clarification. Based on these findings the court denied the defendant’s motion to dismiss the claim under the DNC provision.