Seventh Circuit urged to extend consumer protections to spam texts

(CN) — A Seventh Circuit panel heard oral arguments Thursday on whether the Telephone Consumer Protection Act gives consumers the right to sue over repetitive soliciting text messages.

"Now everything is a telephone," said U.S. Circuit Judge Thomas Kirsch, a Trump appointee. "A telephone is a computer. I have a telephone in my pocket, and it's the most powerful thing in the world."

Blackstone Medical Services is a Florida-based company selling at home sleep tests that record the body's activity during sleep to assist healthcare providers in diagnosing sleep disorders and disruptions.

Seth Steidinger sued the company in 2024 in Illinois, claiming to be a victim of an "unending barrage of texts" from Blackstone soliciting its testing products despite several requests to stop.

Joseph Jones and Natasha Koller, both from Florida, joined the class action in 2025.

They claim Blackstone operates an aggressive telemarketing campaign targeting consumers on the National Do Not Call Registry for at least 30 days. They reported receiving soliciting text messages three or more times per day about scheduling a sleep study, according to the original complaint.

Now the three-judge panel must decide whether the consumers have the right to sue under the Telephone Consumer Protection Act for the unending barrage of sleep study solicitations from Blackstone.

The Federal Communications Commission has worked with Congress since enacting the Telephone Consumer Protection Act in 1991 to bring it up to speed on modern technology in some ways.

As example, a 2003 order expanded some sections to include invasive text message soliciting. However, Congress did not extend the private right of action section in the same way.

Attorney Jessica Garland, representing the consumers, argued including "text message" in other parts of the law suggests a legislative intent in the private right of action section under which her clients bring their suit.

The panel appeared unconvinced by the argument, repeatedly highlighting no one in 1991 or today says they will make a call when they mean they intend to send a text.

"Now, today, we're arguing whether 'telephone call' means 'text message' because in 2003 the FCC said in a provision that a call should include an SMS message. If Congress wanted to make a private right of action here, they would have," said attorney Lauren Purdy, arguing on behalf of Blackstone.

U.S. District Judge Jonathan Hawley, a Joe Biden appointee, found in favor of Blackstone and dismissed the case in August 2025. He reasoned a statute's words are given their common meaning as of the time the statute was enacted.

Text messaging had not been invented when the Telephone Communication Protection Act was enacted and, while Kirsch conceded that the term "telephone solicitation" could include text messaging in other sections, that phrase doesn't appear in the private right to action provision.

In briefs, the plaintiffs argued failing to include invasive text messaging to the private right to sue provision would create a loophole in the law, rendering it meaningless. They asked the panel to broaden the act to catch up with modern schemes in to uphold its original intent.

"A wholistic approach to statutory interpretation should lead this court to only one conclusion: text messages constitute 'calls' under the TCPA," the plaintiffs said in a brief. "To hold otherwise jeopardizes the privacy and comfort of nearly every American that Congress sought to protect."

Blackstone's argument was simply that a text message is not a phone call — it wasn't in 1991, and it isn't today.

Purdy argued equating the two for the purposes of private right to action is a slippery slope. Just because phones can do more now than they could in 1991 doesn't mean the law should be reshaped in the courts to fit the new tech.

Kirsch gave this argument more water, suggesting himself that it defies logic to make the claim that a text is the same as a call in any context.

He noted a text message can be ignored or read and not responded to while a phone call consumes the entire screen, rings for several seconds before ceasing the disruption and requires actual verbal communication to request the solicitations stop.

While repetitive soliciting texts are surely annoying, according to Kirsch — taking the opportunity to point out that the entire gallery was nodding in agreement — a phone call is far more disruptive and thus earned the private right to sue.

U.S. Circuit Judges Doris Pryor and Nancy Maldonado, both Joe Biden appointees, rounded out the panel, which did not indicate when or how they would rule.