TCPA § 227(c)(5) Creates a Private Right of Action for Unwanted “Telephone Calls,” Not Text Messages

1. Introduction

In Seth Steidinger v. Blackstone Medical Services, the Seventh Circuit addressed a recurring split-in-the-statute problem under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227: whether the private right of action in § 227(c)(5)—the Do-Not-Call (DNC) subsection—extends to text messages.

The plaintiffs alleged they received repeated marketing texts (and some calls) promoting Blackstone’s home sleep tests, even after replying “STOP” and/or placing numbers on the National Do-Not-Call Registry. They brought a consolidated class action asserting claims under the TCPA and the Florida Telephone Solicitation Act. Blackstone moved to dismiss the TCPA claims, arguing that § 227(c)(5) authorizes suits only for “telephone calls,” not texts. The district court agreed, dismissed the TCPA claims, declined supplemental jurisdiction over the remaining Florida claim, and dismissed the action. The Seventh Circuit affirmed.

Key issue: whether a “telephone call” in § 227(c)(5) includes a modern text message.

2. Summary of the Opinion

The Seventh Circuit held that § 227(c)(5) does not permit private lawsuits based on unwanted text messages. Interpreting statutory text in light of its ordinary public meaning at enactment and the surrounding statutory scheme, the court concluded that texts are “messages,” not “calls,” and Congress chose narrower language in § 227(c)(5) than elsewhere in § 227. The court also rejected reliance on Supreme Court dicta/assumptions in other TCPA provisions, Seventh Circuit and other-circuit “text-as-call” statements made in the context of § 227(b), and arguments seeking binding deference to FCC interpretations.

3. Analysis

3.1 Precedents Cited (and How They Matter)

• Nat'l Shopmen Pension Fund v. DISA Indus., Inc., 653 F.3d 573, 578 (7th Cir. 2011)
  Role: Provides the standard of review: de novo review of dismissal and statutory interpretation.
• Bostock v. Clayton County, 590 U.S. 644, 654 (2020)
  Role: Anchors the interpretive method: statutory terms are read according to their ordinary public meaning at enactment.
• Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018)
  Role: Distinguishes between fixed meaning and new applications. The court used this to acknowledge that old words can cover new things (e.g., “money” including electronic transfers) while still concluding that “telephone call” does not naturally extend to texts.
• Delaware v. Pennsylvania, 598 U.S. 115, 127-28 (2023)
  Role: Supports consulting contemporaneous dictionary definitions when a statute lacks a definition.
• Matter of Erickson, 815 F.2d 1090, 1094 (7th Cir. 1987)
  Role: Caution against “too much liberality” and against letting “the march of technology” alone rewrite statutory language.
• FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
  Role: Reinforces reading text in context and within the overall statutory scheme.
• Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457-58 (2022)
  Role: Meaningful-variation canon: when Congress uses different terms in nearby provisions, courts presume a different meaning. This supported the call/message distinction within § 227.
• Nielsen v. Preap, 586 U.S. 392, 414 (2019)
  Role: Canon against surplusage: courts should give effect to every word; “call” and “message” must do different work in the TCPA.
• Chickasaw Nation v. United States, 534 U.S. 84, 90-91 (2001)
  Role: Used to treat an apparent cross-reference problem as a drafting error rather than an ambiguity that expands meaning.
• Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th Cir. 1997)
  Role: Waiver: the plaintiffs did not pursue a theory based on calls alone, so the court did not consider it.
• Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016)
  Role: Plaintiffs relied on its statement that a text “qualifies as a ‘call’” under § 227(b)(1)(A)(iii). The Seventh Circuit characterized it as an uncontested assumption, not a resolved statutory holding, especially after later clarification in Facebook, Inc. v. Duguid.
• Facebook, Inc. v. Duguid, 592 U.S. 395, 400 & n.2 (2021)
  Role: Key limiter: the Supreme Court said it would “assume” texts are covered under the TCPA for purposes of that dispute because the parties did not contest it, without deciding the issue. The Seventh Circuit used this to avoid treating Campbell-Ewald as controlling on the meaning of “call.”
• Warciak v. Subway Rests., Inc., 949 F.3d 354, 356 (7th Cir. 2020) and Douglas v. W. Union Co., 955 F.3d 662, 663 (7th Cir. 2020)
  Role: Prior Seventh Circuit statements treating texts as calls were tied to § 227(b) litigation and relied on Campbell-Ewald. The court treated them as non-dispositive for § 227(c)(5), especially in light of Duguid.
• Breda v. Cellco P'ship, 934 F.3d 1, 4 n.1 (1st Cir. 2019); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 88-89 (2d Cir. 2019); Howard v. Republican Nat'l Comm., 164 F.4th 1119, 1124 (9th Cir. 2026); Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305 (11th Cir. 2015)
  Role: Plaintiffs cited these for the “texts are calls” proposition, but the Seventh Circuit distinguished them because they involved § 227(b), not § 227(c)(5), and some rested on Campbell-Ewald’s assumed premise.
• McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025)
  Role: Sets the framework for how courts treat FCC interpretations: courts apply ordinary tools of statutory interpretation and give “appropriate respect,” but are not bound in resolving pure statutory meaning.
• Seven Cnty. Infrastructure Coal. v. Eagle County, 605 U.S. 168, 179-80 (2025)
  Role: Limits arbitrary-and-capricious review to discretionary agency action; statutory meaning is reviewed de novo by courts.
• Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009)
  Role: Provides the general idea that congressional reenactment/amendment can sometimes imply awareness of administrative interpretations; the court acknowledged but ultimately discounted the inference here.
• Alexander v. Sandoval, 532 U.S. 275, 292 (2001) and Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 424 (2017)
  Role: Devalues congressional inaction as evidence of approval. The court used these to reject the argument that Congress “ratified” an FCC view by not amending § 227(c).
• Brown v. Gardner, 513 U.S. 115, 118 (1994)
  Role: Consistent-usage presumption. The court held it inapplicable because § 227(b) and § 227(c)(5) use different language and create differently framed private rights of action.
• Hulce v. Zipongo Inc., 132 F.4th 493, 500 (7th Cir. 2025)
  Role: Reinforces that the TCPA’s remedial aims do not override “clear statutory language.”
• Blow v. Bijora, Inc., 191 F. Supp. 3d 780, 786 n.3 (N.D. Ill. 2016)
  Role: Historical fact support: the first text message postdated the TCPA’s enactment, underscoring that “telephone call” in 1991 was not understood to include SMS.

3.2 Legal Reasoning

1. Start with the specific text of § 227(c)(5): “telephone call.”

   The private right of action in § 227(c)(5) is triggered when a person receives “more than one telephone call” within 12 months in violation of regulations under subsection (c). The court treated “telephone call” as the operative limiting term.

2. Ordinary meaning at enactment: “call” is sound-based communication.

   Using contemporaneous dictionaries, the court reasoned that, in 1991, a telephone was an instrument for reproducing sounds at a distance and to “call” meant to get into communication by telephone—i.e., via sound. Because text messages do not reproduce sounds, they do not fit as a straightforward “new application” of “telephone call.”

3. Statutory context: Congress distinguished “call” from “message” and “telephone solicitation.”

   The court found the broader architecture of § 227 decisive:

   • § 227(c)(1)–(4) repeatedly refers to “telephone solicitations.”
   • The TCPA defines “telephone solicitation” as “the initiation of a telephone call or message” encouraging purchase or investment. § 227(a)(4).
   • Yet § 227(c)(5) authorizes suit only for repeated “telephone call[s],” not “telephone solicitation[s]” and not “message[s].”

   Applying the meaningful-variation canon (Sw. Airlines Co. v. Saxon) and the canon against surplusage (Nielsen v. Preap), the court concluded Congress deliberately made § 227(c)(5) narrower than the broader “telephone solicitation” concept.

4. Analogy within the 1991 statute: faxes as “messages,” not “calls.”

   Though SMS did not exist, the TCPA did contemplate text/image transmissions over telephone lines (fax) and treated them as “message[s]” sent via a “telephone facsimile machine.” The court used § 227(d)(1) to show that Congress already had a category for non-voice transmissions and labeled them “messages,” reinforcing that modern texts are better conceptualized as “messages.”

5. Cross-reference confusion treated as a drafting error, not an expansion of “calls.”

   The court addressed § 227(c)(1)(D)’s reference to “calls exempted under subsection (a)(3)” (which now defines “telephone facsimile machine”). It concluded this mismatch arose from 2005 renumbering and should not be leveraged to treat faxes—or by analogy texts—as “calls,” citing Chickasaw Nation v. United States.

6. Distinguishing “texts are calls” cases under § 227(b).

   The court emphasized that many judicial statements treating texts as calls arise under § 227(b) (autodialer/prerecorded-call prohibitions and their broadly worded private right of action in § 227(b)(3)), which uses different structure and language from § 227(c)(5). It also relied on Facebook, Inc. v. Duguid to frame Campbell-Ewald Co. v. Gomez as an assumption, not a binding construction.

7. FCC interpretation: “appropriate respect,” not binding deference on statutory meaning.

   The plaintiffs pointed to FCC action extending DNC protections to texts (2024 rulemaking). The court reasoned that because the registry is grounded in § 227(c)(3) (“telephone solicitations”), it does not answer whether § 227(c)(5)’s narrower “telephone call” language creates a private damages remedy for texts. And in any event, under McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., courts decide statutory meaning using ordinary tools and give only “appropriate respect” to agency views.

8. Congressional inaction is weak evidence; selective amendments cut against plaintiffs.

   The plaintiffs argued Congress “acquiesced” in FCC practice by amending the TCPA without revising § 227(c). Relying on Alexander v. Sandoval and Star Athletica, L.L.C. v. Varsity Brands, Inc., the court treated inaction as not persuasive. It also noted Congress has shown it can expressly address texts elsewhere (e.g., amendments to § 227(e)), yet did not amend § 227(c)(5).

9. Policy arguments cannot override the statute’s textual limits.

   The court acknowledged unwanted texts are a nuisance but held that remedial-purpose arguments cannot expand § 227(c)(5) beyond its text and context, invoking Facebook, Inc. v. Duguid and Hulce v. Zipongo Inc.. It also observed that Congress’s original safety concerns about calls tying up lines are less implicated by texts.

3.3 Impact

• Seventh Circuit limitation on DNC private suits for texts: Within the Seventh Circuit, plaintiffs seeking damages and injunctive relief under § 227(c)(5) cannot base that claim on SMS texts alone; they must fit within “telephone call” (voice) conduct.
• Pressure shifts to other TCPA pathways: The decision implicitly channels text-message litigation toward other statutory hooks (commonly § 227(b), where available) and toward administrative enforcement and rulemaking rather than § 227(c)(5) private suits.
• Sharper pleading and issue preservation: The panel’s waiver holding (calls-alone theory not pursued) underscores that plaintiffs must preserve alternative theories (e.g., voice calls) early, especially when texts dominate the alleged conduct.
• Interpretive template for “old words/new tech” disputes: The opinion provides a structured method: (1) enactment-era meaning, (2) statutory scheme, (3) canons (variation/surplusage), (4) treatment of drafting errors, (5) limited weight for agency views and congressional inaction.

4. Complex Concepts Simplified

Private right of action

A statutory permission for private individuals (not just the government) to sue for violations. The court held § 227(c)(5) grants that permission only for repeated prohibited “telephone call[s].”

Ordinary public meaning at enactment

Courts often interpret statutory terms as an ordinary reader would have understood them when Congress passed the law. Here, “telephone call” was understood as voice communication.

Fixed meaning vs. new applications

A word’s meaning stays the same, but it can apply to new factual developments. The court accepted that principle (from Wis. Cent. Ltd. v. United States) but found texts fall outside the “call” category given the call/message distinction in the statute.

Meaningful-variation canon

When Congress uses different words in nearby provisions, courts presume the difference is intentional. “Telephone solicitation” (call or message) differs from “telephone call,” so the remedy is narrower.

Canon against surplusage

Courts avoid interpretations that make words redundant. If “call” already included “message,” Congress would not have separately referenced “call or message.”

Supplemental jurisdiction

A federal court’s discretion to keep state-law claims after federal claims are dismissed. Once the TCPA claims were dismissed, the district court declined to keep the Florida claim.

Agency “deference” vs. “appropriate respect”

The court emphasized that, in pure statutory interpretation disputes, courts decide meaning themselves and may consider (but are not bound by) agency interpretations, citing McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp..

Waiver on appeal

Arguments not properly raised are not considered. The court did not examine whether the case could proceed based solely on alleged voice calls because plaintiffs did not press that theory.

5. Conclusion

Seth Steidinger v. Blackstone Medical Services establishes a clear Seventh Circuit rule: the TCPA’s DNC private right of action in 47 U.S.C. § 227(c)(5) is limited to repeated unwanted telephone calls and does not authorize suits for unwanted text messages. The court grounded this conclusion in enactment-era meaning, statutory structure distinguishing “call” from “message,” and interpretive canons, while resisting expansion based on technological change, remedial-purpose arguments, FCC regulatory posture in adjacent provisions, or congressional inaction. The result meaningfully narrows one common avenue for text-message class actions within the circuit and pushes SMS enforcement toward other statutory provisions and administrative mechanisms.