Davis v. CVS Pharmacy, Inc., No. 4:24-cv-477-AW-MAF (N.D. Fla. Aug. 26, 2025)
Plaintiff filed a putative class action, claiming that Defendant violated 47 U.S.C. § 227(c)(5) and its implementing regulation, 47 C.F.R. § 64.1200(c), by sending him unwanted text messages although his number was listed on the National Do Not Call Registry. Defendant moved to dismiss the Complaint, arguing that text messages are not telephone calls and that, as a result, Plaintiff could not state a claim because Section 227(c) provides a private right of action to only those who receive “more than one telephone call.”
Plaintiff opposed the Motion, arguing that other provisions of the TCPA protect consumers’ right to “avoid receiving telephone solicitations to which they object,” and yet another provision defines “telephone solicitations” to include “a telephone call or message,” contending that the phrases “telephone call” in Section 227(c)(5) and “telephone call or message” in Section 227(a)(4) have identical meaning. Rejecting this argument, the Court noted that courts are to 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 meaning. Additionally, use of the phrase “telephone call or message” in the neighboring provision actually undermined Plaintiff’s position, reflecting that that Congress did not use the term to encompass all messages.
Plaintiff also pointed to the FCC’s 2003 Order stating that text messages should be considered calls for certain TCPA purposes, contending that pursuant to the United States Supreme Court’s recent decision in McLaughlin Chiropractic Assoc., Inc. v. McKesson Corp., the FCC’s Order is entitled to “appropriate deference.” Rejecting Plaintiff’s interpretation of McLaughlin, the Court noted that McLaughlin simply requires “appropriate respect,” and that one can provide appropriate respect to an agency’s view without adopting a statutory interpretation that conflicts with ordinary public meaning of clear statutory text.
In granting Defendant’s Motion, the Court recognized that it must interpret every statute “in accord with the ordinary public meaning of its terms at the time of its enactment,” and that “[t]he statutory text here is clear, [ ] a text message is not a ‘telephone call’” because “no 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.”
A copy of the opinion can be accessed by clicking here.
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