By Timothy S. Donahue

Top Takeaways:

• TCPA defense: R.J. Reynolds argues that the Telephone Consumer Protection Act does not apply to text messages sent to cell phones under the statute’s Do-Not-Call provisions.
• Class action challenge: The company seeks dismissal of a proposed class action filed in federal court in North Carolina over alleged unsolicited marketing texts.
• Broader implications: A ruling in Reynolds’ favor could add to a growing body of federal decisions that limit TCPA claims involving text messaging.

R.J. Reynolds is asking a federal court to dismiss a proposed class action that could test the scope of the Telephone Consumer Protection Act (TCPA) in the era of text message marketing.

In a motion filed in the U.S. District Court for the Middle District of North Carolina, Reynolds argues that the plaintiff’s claims fail because the TCPA’s Do-Not-Call provisions regulate telephone calls—not text messages—and apply to residential telephone subscribers rather than to cell phones.

The lawsuit alleges that Reynolds violated the TCPA by sending unsolicited promotional text messages to consumers whose numbers were on the National Do Not Call Registry. The plaintiff seeks to represent a proposed class of similarly situated recipients.

Reynolds contends that the case should be dismissed based on a growing number of federal court decisions holding that text messages do not fall within the TCPA’s private right of action for Do-Not-Call claims.

The company argues that the statute repeatedly refers to “telephone calls” and “residential telephone subscribers,” language that does not encompass marketing text messages sent to cellular telephones.

The motion reflects an emerging legal debate following several recent federal court decisions that have narrowly interpreted the TCPA’s Do-Not-Call provisions. Courts in Ohio, Florida, and Georgia have held that text messages are not “telephone calls” under that section of the statute, although the issue remains unsettled nationwide.

If the North Carolina court adopts Reynolds’ position, the ruling could further restrict the use of the TCPA’s Do-Not-Call provisions in lawsuits involving text-message marketing, potentially affecting litigation against tobacco, nicotine, and other consumer product companies that communicate with adult consumers via SMS.

The court has not yet ruled on Reynolds’ motion.