Judge Rejects Kohl’s Argument That TCPA’s DNC Provision Doesn’t Apply to Texts
U.S. District Judge Joseph Stadtmueller for Eastern Wisconsin in Milwaukee denied Kohl’s motion to dismiss plaintiff Ruhi Reimer’s first amended Telephone Consumer Protection Act complaint, said his signed order Thursday (docket 2:23-cv-00597). The judge’s order rejected Kohl’s arguments that the…
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TCPA’s do not call provision applies to only voice calls, not to text messages. Stadtmueller relied heavily on an April 7 FCC NPRM in which the FCC proposed to clarify that the DNC protections apply to text messages as well as voice calls, said the order. Kohl’s argued the FCC’s proposed amendment “can only be forward-looking,” not a rule that was already in force. The judge agreed with the plaintiff’s argument that the NPRM was intended to clarify and remove all doubt on whether the TCPA’s DNC provision covers text messages, said the order. The 9th Circuit U.S. Court of Appeals, in an order issued after the NPRM, said the DNC provision applied to text messages sent before the NPRM, in 2019 and 2020, the order said. Stadtmueller agrees that by exempting text messages in certain areas of the TCPA, the FCC “has implicitly stated that text messages are already included” in the DNC provision, said the order. Language used in the NPRM’s synopsis, that the FCC was trying to further protect consumers from unwanted marketing texts, “suggests a desire to ensure current regulations are working effectively,” it said. Stadtmueller said the NPRM “merely restates what the law is and has been,” and Kohl’s motion “must be denied,” it said.