It’s A Brave New World For TCPA Claims

After the United States Supreme Court’s decision in McKesson, readers of this blog know
that companies facing Telephone Consumer Protection Act
(“TCPA”) allegations have raised challenges to these claims on grounds
previously unavailable. In the wake of McKesson, federal
district courts now can independently evaluate TCPA claims without
deferring to interpretations or guidance issued by the Federal
Communications Commission’ (“FCC”). In one such TCPA
case, an Illinois federal judge ruled that text messages are not
“telephone calls” for purposes of the TCPA’s
Do-Not-Call (“DNC”) regulations. Below, we discuss the
decision in detail, the current status of the case, and its
implications for future TCPA claims.

No Private Right of Action for TCPA DNC Claims

In Jones v. Blackstone Med. Servs., LLC,
Plaintiffs, on behalf of themselves and a putative class, filed a
Complaint in the United States District Court for the Central
District of Illinois asserting TCPA DNC claims against Blackstone for the
receipt of allegedly unwanted commercial text messages. Blackstone
moved to dismiss the Complaint on the grounds that the TCPA’s
provision affording a private right of action does not prohibit
text messages. In support of its argument, Blackstone asserted,
among other things, that the phrases “text message” and
“SMS message” are completely absent from the TCPA’s
private right of action clause. In granting Blackstone’s Motion
to Dismiss, the Court evaluated the plain language of the TCPA and
determined that the TCPA’s private right of action provision
does not apply to text messages. Although the Court acknowledged
that it must afford a certain amount of deference to FCC
interpretations of the TCPA, the Court agreed with Blackstone that
the absence of: (1) a definition of the term “telephone
call” which includes the phrase “text message”; and
(2) any mention of the term “text message” in the
TCPA’s private right of action clause, warranted dismissal of
the Complaint. On August 11, 2025, Plaintiffs filed a Notice of
Appeal to the United States Court of Appeals for the Seventh
Circuit and Plaintiffs recently filed their appellants’ brief.
Blackstone’s response is due on November 20, 2025.

Future of TCPA Claims and TCPA Compliance

It should be noted that the Blackstone decision is not
an outlier, as a Florida federal district court recently reached the same conclusion for similar
reasons as those set forth in Blackstone.
Post-McKesson, district courts now are being asked to
independently interpret various provisions of the TCPA that
previously were foreclosed by FCC TCPA interpretations and
rulemakings.

Since the TCPA was enacted over thirty years ago, the FCC has
implemented a whole host of regulations pursuant to its statutory
enabling authority. In a post-McKesson world, FCC
regulations and statutory interpretations are now ripe for
challenges in district courts across the country. Although
companies sued for alleged TCPA violations have new viable
arguments to defend against TCPA claims, inconsistent rulings
amongst jurisdictions will create uncertainty for the telemarketing
industry and TCPA-compliance going forward.

Prior to McKesson, complying with the TCPA and its
implementing regulations already was extremely nuanced and fraught
with landmines. In this uncertain landscape, complying with the
TCPA and other federal and state telemarketing laws requires the
guidance of attorneys who stay at the forefront of the latest
developments in the telemarketing law space. The attorneys at Klein Moynihan Turco routinely: (1) advise
clients on federal and state telemarketing law compliance; and (2)
defend companies named as defendants in TCPA lawsuits.

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.