Did a Prolific TCPA Plaintiffs’ Attorney Just Argue That the Statute Does Not Regulate Text Messaging? The Hearing Transcript Says Yes

For years, the plaintiffs’ bar has been filing Telephone Consumer Protection Act (TCPA) class actions alleging the receipt of unsolicited, autodialed text messages. But the TCPA’s autodialer prohibition explicitly refers to “calls,” not text messages, whereas other provisions of the statute, namely the Truth in Caller ID Act, expressly extend to both “text messaging service[s].” In fact, that section of the TCPA even includes a definition for “text message.”

Nonetheless, based on dicta from a decade-old Supreme Court decision addressing whether federal courts have concurrent jurisdiction with state courts over TCPA claims, Mims v. Arrow Financial Services, LLC, the plaintiffs’ bar regularly includes in its autodialer complaints an allegation that text messages are calls for purposes of applying and construing the TCPA. During the December 2020 oral argument before the Supreme Court in Facebook, Inc. v. Duguid, Justice Clarence Thomas questioned “why a text message is considered a call under the TCPA” in the first place. But the issue was not before the Supreme Court; nor did the Court address it in its decision.

So, text messages still are generally considered to be “calls” under the TCPA subject to its autodialer prohibition. But, remarkably, just two weeks ago in Alvarez v. Sunshine Life & Health Advisors LLC, a putative Florida Telephone Solicitation Act (FTSA) autodialer class action arising out of the plaintiff’s receipt of a single text message (maybe two, depending on how the complaint is construed), the plaintiff’s counsel the position that the TCPA and FTSA are different in that the FTSA covers text messaging, whereas the TCPA does not.

Huh? Let me set the stage a bit.

In Alvarez, the defendant moved to dismiss on grounds that the plaintiff’s receipt of a lone text message is not a concrete injury sufficient to confer standing under Florida law. The defendant relied on the Eleventh Circuit’s 2019 decision in Salcedo v. Hanna, which held that the receipt of a single unsolicited text message, without more, cannot constitute a sufficient injury in fact to confer Article III standing under the TCPA.

Florida state courts are not beholden to the federal Article III standing requirements. However, the most recent Florida Supreme Court articulation of the state standing rule is the same as its federal counterpart. During the February 28, 2022 oral argument on the defendant’s motion to dismiss in Alvarez, the plaintiff’s attorney tried to distinguish Salcedo by arguing that the TCPA does not address text messages whatsoever, whereas the FTSA does. Specifically, he argued:

So defense counsel cited a number of cases beginning with the Salcedo case out of the 11th Circuit and a number of federal court cases and he alleged that at least the Salcedo case, if not all of those cases, are directly on point. Respectfully they are not on point. All of those cases were federal court cases addressing a federal statute, the TCPA, which does not address text messages.

That is a very important distinction here. The FTSA which is at issue in this case specifically regulates text messages. The federal TCPA does not mention text messages and that is important because the 11th Circuit in the Salcedo opinion when it came to its holding that there was no standing the basis of its holding was that the TCPA does not mention text messages at all. . . .

. . . That is the Florida statute [the FTSA]. That is what we are suing under and that specifically does address text messages. . . .

. . . If you search Salcedo, the opinion, it says specifically something along the lines of it’s important to see what the legislative history or the TCPA says about text messages in kind of a joking fashion, the court says, nothing, because it doesn’t address text messages. That was one of the things that supported the court’s conclusion that how can you have harm from a single text message under a statute [the TCPA] that doesn’t even regulate text messages. Then that brings me back to address another point raised by defense counsel which is he went through a couple of cases talking about where you have a state statute patterned after a federal statute, the state statute gets the same statutory construction as the federal statute. That may be the case but here we are not talking about statutory construction. In fact, to the extent we are focusing on the relative language here text messages, the two statutes are completely different, one addresses text messages and one does not address text messages. How can they be construed in the same manner in any way? . . .

. . . Well, like I said the Salcedo court found there is no standing under the TCPA, federal statute, because it doesn’t mention text messages. Again we are suing under a Florida state statute FT[S]A which specifically mentions text messages so comparing the analysis that defense counsel is trying to use for the TCPA and the standing analysis for the FTSA is like comparing apples and oranges.

(Emphasis added.)

These are pretty wild positions for a telemarketing attorney to take: that the TCPA “does not address text messages” and “doesn’t even regulate text messages.” Those litigating cases against the plaintiff’s attorneys in Alvarez should keep these admissions in mind.