As TCPA cases continue to spike Plaintiff’s lawyers are looking to supplement their filings with a little added spice.
Adding a state law claim into the mix can add additional damage recovery for the same calls and sometimes can add additional claims that aren’t available under the federal law.
But these state law claims may also be more limited than the TCPA– even when similar language is used in the statute.
Take the Massachusetts Telephone Solicitation Act, for example.
This law interalia, prevents “unsolicited telephonic sales call[s] to a consumer” if (1) “the consumer’s name and telephone number” appear on the “do-not call” list maintained pursuant to the statute; (2) the call is made before 8:00 a.m. or after 8:00 p.m., (3) the call is “in the form of electronically transmitted facsimiles,” or (4) is made using a recorded message device. Mass. Gen. Laws c. 159C, § 3.
Pretty strict and pretty broad.
Or is it?
In Jones v. Safr Technologies 2025 WL 2256659 (D. Mass. Aug. 7, 2025) the court was asked to determine whether SMS messages qualify for protection under the MTSA.
Its conclusion?
Nope.
In Jones the court focused on the wording used in the statute. Here’s the analysis:
Neither “call” or “telephonic call” is defined in the statute, but the “plain and ordinary meaning” of those terms is a simultaneous audio communication between two telephones. See Commonwealth v. Russo, 236 N.E.3d 1171, 1176-77 (“Where the statute itself does not define a term, we look to its plain and ordinary meaning.”) The inclusion of specific language prohibiting calls “in the form of electronically transmitted facsimiles” demonstrates the legislature’s understanding that, on their own, the terms “call” and “telephonic sales call” are not broad enough to include faxes sent using telephone infrastructure. Although at the time of drafting the legislature understood how to prohibit additional types of communications made using telephone infrastructure, the statute does not mention text messages or cellular phones. Without such language, the court concludes the statutory prohibition against certain “calls” or “telephonic calls” does not apply to text messages.
Wow!
Interesting, no?
While many courts have found a “call” means any communication by telephone this court has determined a call means ONLY audio communication by telephone. And under this definition an SMS message is not a “call.”
So MTSA case is tossed.
Also interesting– the court reached the opposite conclusion with respect to the TCPA! The analysis on this piece is… inelegant and difficult to track so I will spare you from it. But bottom line– texts are not “calls” under the MTSA
More broadly, this is the first court I am aware of that has directly held a call is only audio communication between phones. This feels like a real breakthrough and one that can be used across the country to challenge state law claims– and perhaps even TCPA claims where the jurisdiction does not have potent or binding case law to the contrary.
Take a good note here. This is a biggie folks.
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