THE DEBATE CONTINUES!: Northern District of California Holds Text Messages ARE Telephone Calls For TCPA Purposes

Hi TCPAWorld!

The debate continues! Another decision on “texts-versus-calls” comes out of the Northern District of California. In Ronald Cupp v. TA Fintech, Inc., Judge Thomas S. Hixson held that a text message is a “call” for TCPA purposes.

Under 47 U.S.C. § 227(b)(1)(A)(iii), the TCPA prohibits any person making a call (other than in emergency instances) using any automatic telephone dialing system or an artificial or prerecorded voice without the prior express consent of the called party.

In Ronald Cupp v. TA Fintech, Inc., Plaintiff alleged that Defendant sent over 105 unsolicited text messages and telephone calls. In determining whether Plaintiff had a claim under the TCPA, the court considered if Plaintiff showed all three elements of the following three-factor test established in Meyer v. Portfolio Recovery Assocs., LLC: “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.”

The first factor of this test is where the court briskly discussed if “texts are calls” under the TCPA. Citing just two cases, the court found that the first element of the test was adequately pled by Plaintiff alleging he had received over 105 texts and calls from Defendant. The court cited Satterfield v. Simon & Schuster, Inc., in which the Ninth Circuit held that a text message is a “call” for purposes of the TCPA. Further, the court cited Wilson v. MEDVIDI Inc., another recent Northern District of California case that concluded “a ‘telephone call’ as used in 47 U.S.C. § 227(c) encompasses the types of text messages Plaintiff complains of.”

We certainly have not seen the last of this issue. If you haven’t been keeping up, district courts across the country have been battling on the issue of “texts-versus-calls.”

If you are new to the debate, the Czar of TCPAWorld recently provided readers with a scoreboard and visual map showing the outcomes on the issue:

LATEST SMS SCOREBOARD: Get Ready for Law Conference of Champions With the Complete Set of TCPA DNC SMS Rulings At your Fingertips.

Want to dig deeper into these decisions? Read our previous blogs to catch up on how courts across the country are split on the issue:

• THE TCPA TEXTS SPLIT GROWS!: Ohio Court Holds Text Messages Are Not “Telephone Calls”
• TEXTS ARE CALLS (AGAIN): Southern District of Texas Court Uses “Mower” Analogy To Find Texts Are Calls Under 227(c)(5) Post-McKesson
• TEXTS ARE NOT CALLS!: Second Court Holds Text Messages Cannot Violate TCPA’s DNC Provisions And It Is Getting Interesting Now – TCPAWorld
• CHAOS CHAOS: A different Court Holds SMS Messages ARE Subject to TCPA DNC Protections- On the SAME DAY A Different Court Disagreed – TCPAWorld
• CHAOS: The First Court Just Found the TCPA’s DNC Rules Do Not Apply to Text Messages- So Let the Chaos Begin! – TCPAWorld
• MASSIVE HOLDING: Ninth Circuit Appears to Confirm SMS Messages Are “Calls” Under the TCPA En Route to Holding MMS Video Is not a “Prerecorded” Call – TCPAWorld
• HIGH STAKES: Another Federal Court Rules SMS Messages Are Calls Under the TCPA- But Certifies Issue for Appellate Court Review – TCPAWorld
• RESPECT OR DEFERENCE?: District Court Finds that Text Messages Are Calls Under the TCPA, Without Looking at the Definition of “Call” – TCPAWorld
• TORTURED REASONING?: Another Court Holds SMS Messages ARE Subject to TCPA DNC Rules And How Can We Make Sense of It? – TCPAWorld