Seventh Circuit Limits TCPA Lawsuits Over Marketing Text Messages

On July 14, the Seventh Circuit Court of Appeals ruled in Steidinger v. Blackstone Medical Services that consumers cannot sue businesses for unwanted marketing text messages under a key provision of the Telephone Consumer Protection Act (TCPA). The case is one of the most significant TCPA decisions in years.  

But don’t ramp up your SMS campaigns just yet. This ruling doesn't give anyone free rein to send marketing texts, and the landscape is more complex than it may appear.

Seventh Circuit Rules Marketing Text Messages Are Not "Telephone Calls" Under the TCPA

Blackstone Medical Services (Blackstone) sent marketing texts to consumers who had already asked the company to stop — some by replying "STOP," others by adding themselves to the National Do-Not-Call Registry. A class of consumers sued under Section 227(c)(5) of the TCPA, which creates a private right of action for individuals to file suit when they receive more than one unwanted "telephone call" from the same company in a 12-month period.

In response to the class action complaint, Blackstone moved to dismiss the TCPA claims, arguing that Section 227(c)(5) only creates a private right of action for phone calls, not text messages. Judge Hawley of the Central District of Illinois agreed, dismissing the TCPA claim and declining to exercise supplemental jurisdiction over the state law claims.

On appeal to the Seventh Circuit, the question before the court was: Is a text message a "telephone call" under the TCPA? The Seventh Circuit said no. When Congress passed the TCPA in 1991, a "telephone call" meant using a phone to communicate by sound. Because text messages — which did not exist until 1992 — do not reproduce sound, they do not fit the definition.

The court also noted something important in how the statute is written: Congress used the broader phrase "telephone solicitation" (which includes both calls and messages) in other parts of the same section of the TCPA but chose the narrower phrase "telephone call" for Section 227(c)(5). That distinction matters, and the court read it as deliberate. 

What the Steidinger Decision Means for Businesses Sending Marketing Text Messages

If your business advertises to consumers in Illinois, Indiana, or Wisconsin — the three states covered by the Seventh Circuit — this decision significantly reduces your exposure to class action lawsuits over non-automated marketing texts filed under Section 227(c)(5). 

However, the Steidinger ruling is narrow in several important ways:

• It only applies in three states. The Seventh Circuit's jurisdiction covers Illinois, Indiana, and Wisconsin. If your business sends texts to consumers in other states, courts there are not bound by this decision.
• There's already a circuit split. Earlier this year, the Ninth Circuit reached the opposite conclusion in Howard v. Republican National Committee, holding that text messages are "calls" under the TCPA. The split is the kind of disagreement the Supreme Court tends to take up, especially on a statute that generates as much litigation as the TCPA does. The Supreme Court could take this issue and create a uniform national rule, which could go either way.
• Other parts of the TCPA still apply to texts. This case addressed only Section 227(c)(5) — the do-not-call rules. A separate provision, Section 227(b), prohibits certain calls and texts sent using automatic dialing technology or prerecorded voices — and that section was not touched by this decision. If your business is using an auto dialer or similar technology to send texts, as many businesses are, you still face potential liability under that provision.
• State laws still apply. Many states have their own consumer protection laws that expressly cover text messages, including the Florida Telephone Solicitation Act at issue in Steidinger. Those laws remain fully enforceable.

TCPA Compliance Tips for Businesses Using SMS and Text Message Marketing

There are several practice takeaways from the Steidinger decision that your business should consider before changing its SMS messaging practices: 

1. Don't treat Steidinger as a green light to ignore opt-out requests. The court acknowledged that unwanted texts are "undoubtedly a nuisance," and other legal avenues remain available to consumers.
2. Keep honoring "STOP" replies and the Do-Not-Call Registry. The FCC still treats texts as covered by its do-not-call regulations, and failing to comply could draw a government-initiated enforcement action.
3. Review your business’s texting technology. If your business’s text campaigns use automatic dialing systems, you may still face exposure under Section 227(b) of the TCPA.
4. Check state laws. Depending on where your customers are located, state-level telemarketing and privacy statutes may impose their own requirements and penalties for unwanted texts.
5. Plan for the possibility that the Supreme Court reverses this. If you adjust your business’s activities based on Steidinger, be prepared to pivot back if the Supreme Court takes up the case and rules differently.

Steidinger is a meaningful development, but it is not the end of the story. For now, the best approach is to stay informed, stay compliant with all applicable federal and state rules, and work with counsel to assess how this decision fits your particular situation.