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Volume XII, Number 230

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Texts Aren’t Calls in Texas: Court Holds Texas Telemarketing Licensing Requirement Does not Apply to Promotional Texts

As everyone knows by now, texts are calls under the TCPA.

However that doesn’t mean that text qualify as calls under all state corollaries.

Take Texas for example.

The state contains a licensing requirement applicable to many companies that engage in telemarketing. However telemarketing, under the Texas statute, does not expressly include text messages.

In Powers v. One Technologies, Civil Action No. 3:21-CV-2091 (N.D. Tex. July 28, 2022) the court held a company sending text messages did not qualify as a telemarketer under the Texas licensing scheme. Here was the analysis:

The Code requires companies who “make a telephone solicitation” to obtain a registration certificate from the office of the Secretary of State.30 Chapter 302 defines “telephone solicitation” as “a telephone call a seller or salesperson initiates to induce a person to purchase, rent, claim, or receive an item. The term includes a telephone call a purchaser makes in response to a solicitation sent by mail or made by any other means.”31
Chapter 302 does not, however, define “call.” The plaintiffs argue that “call” should be defined the same way in Chapter 302 as it is defined in a different chapter, Chapter 304. In 2009, the Texas Legislature amended the definition of “call” in Chapter 304 to include “transmission of a text or graphic message or of an image.”32 The Legislature did not amend the definition in Chapter 302, which is the Chapter at issue here. Furthermore, before the definition provided in Chapter 304, the header is labeled “Definitions. In this chapter.”33 Thus, the Texas Legislature indicated that the definitions in Chapter 304 are confined to Chapter 304. If the Texas Legislature had wanted definitions from Chapter 304 to apply to Chapter 302, it would have said so. Finally, Chapter 302 contains a similar definitions section as Chapter 304 and yet lacks a definition for “call.”34

The alleged violations are about text messages, not phone calls. Under a plain reading of the Code, Chapter 302 does not apply to text messages. While words are presumed to mean the same thing when “it occurs here and there in the same statute,” Chapter 302 and Chapter 304 are different Chapters with their own definition sections.35 The definition sections within the Chapters, § 302.001 and § 304.002, indicate that the definitions are “Definitions. In this chapter.”36 The Court, therefore, will not extend a definition from other, even related, areas of the Code when the legislature has chosen not to do so. Accordingly, the Court rejects the plaintiffs’ argument that “call” under Chapter 302 includes “text messages.”37 For this reason, the Court DISMISSES WITH PREJUDICE count five of the plaintiffs’ first amended complaint alleging a violation of the Texas Business and Commerce Code § 302.101.

Interesting, no?

The Court also dismissed the Plaintiff’s TCPA claim for failing to provide appropriate vicarious liability allegations.

So a nice ruling all around.

Have a great day TCPAWorld!

© 2022 Troutman FirmNational Law Review, Volume XII, Number 215
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

949-350-3663
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