Happy Labor Day everyone!

Really big news from the Chief Judge of the Northern District of Florida– the Hon. Allen Winsor: text messages are not “calls” for purposes of the TCPA’s DNC provisions.

The case is Davis v. CVS Pharmacy, Inc. 2025 WL 2491195 (N.D. Fl. Aug. 26, 2025) and it is sure to raise eyebrows across the country.

Backing up, the TCPA’s DNC provisions prohibit telephone solicitations to residential subscribers who list their numbers on the federal DNC registry.

In Davis, CVS allegedly sent promotional text messages to the Plaintiff without an EBR or consent. Plaintiff sued in a class action under the TCPA seeking to recover millions (or more) for people who received similar text messages.

But is a text message a “call” that can qualify as a telephone solicitation to begin with?

Dozens of courts– including seemingly the Eleventh Circuit Court of Appeals– have said “yes” but all of those courts relied upon FCC rulings that are no longer binding following the recent SCOTUS decision in McKesson.

So the courts are now mostly free to blaze their own paths and while a handful of courts have already held SMS messages ARE still subject to the TCPA’s DNC provisions at least one court has said otherwise.

And now, two courts have.

In Davis v. CVS, the court’s analysis was succinct as it is sound:

“[N]o ordinary person would think of a text message as a “telephone call.” This conclusion —supported by the ordinary public meaning at the time of the provision’s enactment—is enough to end this case.”

Wow.

Well that was easy.

The court goes on to explain that neither the Supreme Court (agree) or the Eleventh Circuit (disagree) have held text messages are “calls” under the TCPA. And then it drops this nice little analytic widget:

Congress’s use of the phrase “telephone call or message” in a neighboring provision only undermines Davis’s position. It shows that Congress does not use the term “telephone call” to encompass all “messages.” Although Davis would have me conclude Congress used the term “telephone call” in § 227(c)(5) and the term “telephone call or message” in § 227(a)(4) to have identical meanings, courts should “presume that, when a statute uses one term in one place and a distinct term elsewhere, the difference matters—that is, the distinct words have different meanings.” 

That’s what I’ve been saying!

Horray!

This is a great win and one that may span the test of time.