The Seventh Circuit’s decision in Steidinger v. Blackstone Medical Services holds that marketing text messages are not “telephone calls” for purposes of § 227(c)(5)’s private right of action, meaning plaintiffs in that circuit cannot use the TCPA’s DNC provisions to sue over unwanted texts. This represents the first time an appellate court has ruled on this divisive issue.
While binding only in Illinois, Indiana, and Wisconsin, the opinion is likely to reshape TCPA text‑marketing litigation nationwide and increase reliance on other TCPA provisions and state laws for SMS claims.
Seventh Circuit Case Background
Plaintiffs alleged that Blackstone sent them repeated telemarketing text messages despite their phone numbers being registered on the National Do Not Call Registry and after “STOP” requests. They brought a putative TCPA class action under § 227(c)(5), seeking statutory damages of up to $1,500 per message based on alleged willful violations.
The district court granted Blackstone’s motion to dismiss, holding that text messages are not “telephone calls” within the meaning of § 227(c)(5), and therefore the complaint failed to state a claim under the DNC provisions. On appeal, the Seventh Circuit affirmed, expressly holding that § 227(c)(5) “does not permit plaintiffs to sue for the receipt of unwanted texts.”
Statutory Interpretation
The appellate panel treated the question as one of pure statutory construction, focusing on what Congress in 1991 would have understood the term “telephone call” to mean. Key strands of the reasoning include:
The Ordinary 1991 Meaning: The court concluded that “telephone call” in 1991 referred to a voice communication by telephone, not to SMS text messaging, which did not exist until the following year. This original‑public‑meaning focus undercut arguments that modern usage or technological evolution should broaden the term.
Textual Contrast Within the TCPA: The opinion emphasized that Congress, elsewhere in the statute, used broader phrasing when it wanted to capture non‑call contacts, such as defining “telephone solicitation” to include a call “or message.” By contrast, § 227(c)(5) gives a private right of action only to a person who has received more than one “telephone call” in a 12‑month period in violation of the FCC’s DNC regulations. The court treated Congress’s decision not to mirror “call or message” in § 227(c)(5) as deliberate, signaling that the private remedy extends only to calls.
Role of FCC Orders after Loper Bright / McLaughlin: In 2003, the FCC had interpreted “telephone call” to include text messages, and prior Seventh Circuit authority had deferred to that view. However, after the Supreme Court’s decisions in McLaughlin Chiropractic v. McKeeson Corp. and Loper Bright Enterprises v. Raimondo limiting judicial deference to agency interpretations, the Seventh Circuit treated itself as free to give the statute its own best reading, without binding deference to the FCC’s 2003 order.
Nuisance vs. Statutory Coverage: The court acknowledged that repeated, unwanted texts are “undoubtedly a nuisance” but held that they “do not fall within the private right of action created by § 227(c)(5).” It stressed that spam messages may still be addressed through agency enforcement under other TCPA provisions (for example, FCC or FTC action), even if private plaintiffs lack a DNC‑based damages remedy for SMS.
Collectively, this analysis makes Steidinger the first federal court of appeals decision to hold squarely that text messages are not “telephone calls” for § 227(c)(5) DNC purposes.
Potential Circuit Split
Steidinger lands in a landscape where courts are sharply divided post‑McLaughlin on whether text messages qualify as calls under § 227(c)(5).
- Prior appellate and district‑court decisions: The Ninth Circuit has held that texts are calls for TCPA purposes in Howard v. Republican National Committee, and numerous district courts have also treated texts as calls under § 227(c)(5). At the same time, at least eleven district courts had come out the other way even before Steidinger, holding that text messages are outside § 227(c)(5).
- Pending appeals in other circuits: There is an appeal pending in the Eleventh Circuit on the same issue in Radvansky v. Kendo Holdings, which could either deepen or avoid a direct circuit split, depending on how that court construes “telephone call.”
- Post‑deference environment: Before the recent Supreme Court deference decisions, courts usually accepted the FCC’s view that a text was deemed a telephone call. Steidinger is part of a broader trend of courts revisiting TCPA issues from first principles, without Chevron‑style deference, especially on questions involving technologies that did not exist in 1991.
As commentators have emphasized, Steidinger is likely to be seen as persuasive authority well beyond the Seventh Circuit, particularly because it carefully parses the statutory text and structure rather than relying on policy arguments about consumer annoyance.
Practical Impact on Marketers and Litigants
Within the Seventh Circuit, which includes (Illinois, Indiana, and Wisconsin, the immediate consequences are significant for both plaintiffs and businesses that rely heavily on SMS campaigns:
- No private DNC action for texts under § 227(c)(5): Consumers cannot use § 227(c)(5) to sue over marketing texts based on violation of the DNC regulations, even if their numbers are on the National DNC Registry and even if the texts clearly qualify as “telephone solicitations.”
- Voice calls still covered: Traditional telemarketing calls to residential or wireless numbers registered on the DNC list remain fully actionable under § 227(c)(5), and nothing in Steidinger disturbs that framework.
- Agency enforcement remains available: The opinion explicitly leaves open federal agency enforcement (e.g., by the FCC or FTC) for unlawful SMS practices under other TCPA or telemarketing rules, even where private § 227(c)(5) suits are unavailable.
Limits on Steidinger Impact
Several limits are important for marketers considering changes to their compliance programs:
- Steidinger does not categorically remove texts from the TCPA. The court’s holding is focused on § 227(c)(5)’s private right tied to DNC rules; it does not purport to decide how texts should be treated under § 227(b) (the autodialer, prerecorded/artificial‑voice, and consent‑focused provisions). Automated text campaigns may still be subject to § 227(b) requirements depending on the technology used and the content of messages.
- Steidinger does not override state law. State telemarketing, privacy, and mini‑TCPA statutes may independently regulate text messages, often with their own private rights of action or statutory damages, and Steidinger has no direct effect on those regimes.
- Steidinger does not bless spam as a business strategy: Even if federal DNC text claims are foreclosed in the Seventh Circuit, companies can still face state‑law nuisance, invasion‑of‑privacy, unfair‑practices, or consumer‑fraud claims based on aggressive SMS practices, as well as reputational harm.
Strategic Takeaways for Compliance Teams
For a national text‑marketing program, Steidinger is important but not an invitation to abandon robust TCPA and privacy compliance. Campaign managers and compliance teams should keep the following practical implications of the decision in mind:
Reassess DNC‑based risk for SMS in the Seventh Circuit: Companies sending marketing texts into Illinois, Indiana, and Wisconsin can treat § 227(c)(5) DNC‑based private actions for texts as effectively unavailable, while still accounting for traditional voice‑call risk. This may modestly reduce class‑action exposure for pure SMS campaigns in those states, though state‑law and § 227(b) risk remain.
Continue robust consent practices for texts: Even if DNC‑based private SMS claims are curtailed, opt‑in and opt‑out compliance remains critical to mitigate § 227(b), state‑law, and reputational risk. Marketers should maintain clear disclosures, honor “STOP” requests promptly, and segregate manual versus automated campaigns where that distinction is legally meaningful.
Segment compliance by channel and jurisdiction: Compliance programs should distinguish between:
- Voice telemarketing calls (still squarely within § 227(c)(5) when placed to DNC numbers);
- SMS campaigns (subject to § 227(b), state mini‑TCPAs, and possibly differing interpretations of § 227(c)(5) outside the Seventh Circuit); and
- Email and app‑based messaging (governed by other statutes and regimes).
Avoid over‑reliance on Steidinger outside its footprint: While Steidinger is likely to be influential, other circuits are free to disagree, particularly where they view the term “telephone call” more dynamically or place greater weight on consumer‑protection purposes and prior FCC interpretations. Marketers with a nationwide footprint should assume that in some jurisdictions, texts may still be treated as calls for DNC‑related purposes until the Supreme Court or Congress resolves the split.
