Court Rules That Text Messages Are Not Calls For TCPA DNC Purposes

On October 24 2025, the United States District Court for the
Middle District of Florida issued another favorable decision for
companies contesting National Do Not Call (“DNC”) claims.
In El Sayed v. Naturopathica Holistic Health,
Inc., Plaintiff received several unwanted messages from
Defendant, despite the fact her number was listed on the National
DNC registry. Accordingly, she filed a Complaint arguing that
delivery of the subject texts constituted Telephone Consumer Protection Act
(“TCPA”) National Do Not Call (“DNC”)
violations. The Court dismissed Plaintiff’s Complaint, finding
that Defendant’s text messages did not violate the TCPA’s
DNC rules.

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 DNC
list. Whether commercial text messages violate TCPA DNC
prohibitions, however, has been the subject of a string of recent
court decisions.

How Did the Court Adjudicate Plaintiff’s TCPA DNC
Claims?

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 she received multiple text messages
from Defendant advertising its products and services. Plaintiff
argued that Defendant’s marketing texts should be construed as
telephone calls, subjecting Defendant to statutory damages because
her number was on the National DNC list.

The Court utilized a two-step analysis to rule on
Defendant’s Motion to Dismiss:

1. In 2003, the Federal Communications Commission
   (“FCC”) issued a rulemaking which explained that the
   protections of the TCPA’s DNC provisions should extend from
   voice calls to include text messages. However, on June 20, 2025,
   the United States Supreme Court ruled in McLaughlin Chiropractic Assocs., Inc. v.
   McKesson Corp. that district courts are “not bound by
   the FCC’s interpretation of the TCPA.” Thus, the El
   Sayed Court was tasked with deciding whether unwanted
   commercial text messages violate TCPA DNC prohibitions under
   “ordinary principles of statutory interpretation.”
2. The ordinary principles of statutory interpretation analysis
   begins with the plain language of the provision subject to
   interpretation. This means that words will be assigned their
   “ordinary, contemporary, common meaning.” As noted above,
   the TCPA’s DNC provisions specifically create a private right
   of action for individuals who have received more than one
   telephone call within a 12-month period. The Court
   opined that text messages and telephone calls are separate and
   distinct in common American English language usage. Additionally,
   telephone calls and text messages are different forms of
   communication.

In order to adequately state a claim, Plaintiff would have had
to allege that she received at least two telemarketing calls from
Defendant in a 12-month period. Because she only alleged the
receipt of text messages in her TCPA Complaint, the case was
dismissed.

Why Does Al Sayed Matter to Your Business?

Al Sayed is another decision that further defines the
split between courts as to whether text messages constitute calls
for TCPA DNC purposes. An increasing number of courts have chosen
not to follow the FCC’s TCPA guidance in the wake of McLaughlin. Against this backdrop, it
is important that businesses consult with experienced telemarketing
attorneys to explore previously untenable TCPA lawsuit
defenses.

Related Blog Posts:

Did This Fresh Subway TCPA Litigation Decision
Refresh A New Type of Claim?

Florida TCPA Action Survives Motion to
Dismiss

New Oklahoma Mini-TCPA Becomes Law

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Klein Moynihan Turco LLP (KMT) maintains an extensive practice, with an international client base, in the rapidly developing fields of Internet, telemarketing and mobile marketing law, sweepstakes and promotions law, gambling, fantasy sports and gaming law, data and consumer privacy law, intellectual property law and general corporate law.