DON’T GET CONFUSED!: Court Holds There is Still a Private Right of Action Under TCPA’s 227(b) For Text Messages–Even If Not Under 227(c)

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Law Conference of Champions V ticket prices as I type: $299.00 (and rising)

A lot of focus on whether SMS are subject to the TCPA– and there should be as these rules are changing.

But it is important to note these rules are NOT monolithic.

There are two critical provisions of the TCPA generally and the differences between the two play out everywhere in TCPA jurisprudence– including in the SMS vs. calls debate.

Remember the TCPA includes a regulated technology section (227(b) [and by the way I coined the term “regulated technology” in this context so if you hear anyone else using that phrase just know it came from me]) and a DNC regulation section (227(c)).

The private right of action under 227(b) allows “any person” to sue for “a violation” of the statute’s prohibition banning “any call” made using regulated technology without consent– very broad.

The private right of action under 227(c), however, applies only when a registrant on the DNC receives two or more “telephone calls” in a 12 month period.

The difference between the wording of these two provisions drives the outcome of SMS suits brought under each of the two provisions.

For instance in Taylor v. OffersPDQ, 2026 WL 2998370 (S.D. Tex. Oct. 1, 2026) the court granted default judgment to the Plaintiff on the 227(b) portion of his claim but not his 227(c) portion–although both claims arose out of SMS to his phone.

On the 227(b) claim the court cited Supreme Court authority (Campbell Ewald) that acknowledged SMS can be calls for 227(b) purposes. The Court stated that until SCOTUS or the Fifth Circuit changes its mind the court must allow a private right of action under 227(b).

Under 227(c), however, the court reached a different result. Because only one message was received during a single year on each claim a judgment in favor of Plaintiff could not be entered.

Now Taylor does not directly say “there is a private right of action under 227(b) and not (c)” but that appears to be the state of the law in many jurisdictions right now and Taylor highlights the critical statutory distinctions between the two sections.

Look, if you want this kind of nuanced analysis of the law–that 99.9% of lawyers cannot give you– you NEED to attend Law Conference of Champions V. My TCPA presentation at this show is ALWAYS my most comprehensive of the year– and nobody will give you the analysis you need better than the Czar himself. As I type you can get tickets for less than $300.00!!! But prices rise daily so get in now!

Chat soon.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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