Aliana El Sayed v. Nuturopathica Health, Inc., 8:25-cv-00846-SDM-CPT, 2025 WL 2997759 (M.D. Fla. Oct. 24, 2025)
Defendant sent Plaintiff a promotion text message in February 2022 despite his number being on the national Do-Not-Call registry. Plaintiff responded “stop,” and despite notification that he was unsubscribed from all SMS marketing messages and would not receive further messages, Plaintiff received two additional text messages in April of the same year.
As a result, Plaintiff filed a class action lawsuit, accusing Defendant of violating 47 U.S.C. § 227(c)(5) and its implementing Regulation 47 C.F.R. § 64.1200(c), which provide a private right of action for those whose residential telephone numbers are listed on the national Do-Not-Call registry for more than 30 days and receive at least two telephone calls during any 12-month period.
Relying on a 2003 Federal Communications (FCC) Order, Plaintiff argued that although Section 227(c)(5) is textually limited to telephone calls, it includes text messages. Recognizing that a district court must independently determine whether an agency’s interpretation of a statute is correct, the Court also noted that in interpreting a statute, it must start with the plain language of the provision to be interpreted, adding that “‘[u]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.’”
Rejecting Plaintiff’s argument that text messages are calls for purposes of Section 227(c)(5), the Court held that:
Although some judges differ, I agree with and adopt Judge Winser’s opinion that “the statutory text here is clear, and a text message is not a ‘telephone call.’ ” In addition to the fact that in common American English usage, a “telephone call” and a “text message” are separate and distinct forms of communication, the term “text message” appears elsewhere in the TCPA and related amendments, an appearance that confirms Congress understood the pertinent distinction and legislated mindful of the distinction. The omission of “text message” from paragraph 227(c)(5) confirms that the provision applies only to a “telephone call.”
The Court’s reference to Judge Winser’s opinion references the August 26, 2025 Northern District of Florida case Davis v. CVS Pharmacy, Inc., which we blogged about at the time, and can be viewed by clicking here.
A copy of the Court’s opinion can be accessed by clicking here.
PartnerJoshua Threadcraft is a trial and class action attorney in Burr & Forman’s Financial Services Practice Group with more than two decades of experience during which he has served as first chair counsel in bench, jury trials and ...
