Radvansky v. 1-800-Flowers.com: Northern District of Georgia Holds Texts Are Not "Telephone Calls" Under Section 227(c)(5)

Background

The plaintiff alleged that his personal cell number had been on the National Do Not Call Registry since 2015 and that he received marketing texts, intended for someone else, promoting the defendant's flower business. He asserted a single claim under Section 227(c)(5) and the Federal Communications Commission (FCC) Do Not Call regulation and sought to represent a nationwide class.

Residential Subscriber: Cell Phones Qualify

The defendant argued that after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), courts may no longer defer to FCC orders treating cell phones as residential lines, and that the 1991 statute did not cover cell phones.

Judge Thrash rejected that argument, joining other judges in the district. A residential subscriber is one who uses the phone for private, domestic life, regardless of technology. Because the plaintiff alleged he used the number only for personal purposes, he adequately pleaded residential status.

Text Messages: Not "Telephone Calls"

The court then agreed with the defendant on the second issue.

Fresh review. Before Loper Bright, a 2003 FCC order settled that calls included texts. After McLaughlin, the court explained, district courts must decide the question themselves under ordinary interpretive principles, and courts are split.

Plain text. The court found the statute clear that in common usage, a telephone call and text message are different forms of communication.

Meaningful variation. Congress added the phrase "text message" to a neighboring provision, Section 227(e)(8)(C), in 2019 but left Section 227(c)(5) unchanged. Congress also used "telephone call or message" elsewhere, showing that "telephone call" does not encompass every message.

Precedent distinguished. Campbell-Ewald addressed the broader "any call" language of Section 227(b)(1)(A)(iii) and assumed, without deciding, that texts qualify.

No delegation. The court rejected the argument that Congress delegated to the FCC authority to define "telephone call," and declined to follow contrary district court rulings it found inconsistent with fixed original meaning.

Since the only claim was based on texts, the claim and class allegations failed.

Analysis

This ruling is part of a significant post-McLaughlin split. District courts in the Eleventh Circuit have trended toward excluding texts from Section 227(c)(5), while courts in California, Texas, Illinois, New York and Oregon have held that texts qualify. In July 2026, the Seventh Circuit reached the same result as this court in Steidinger v. Blackstone Medical Services, No. 25-2398 (7th Cir. July 14, 2026). Elsewhere, the forum may still decide whether a texting Do Not Call claim exists at all.

Two cautions apply. The ruling does not address Section 227(b), where the "any call" language has been read to include texts, or state law analogues. The court did not rule on the validity of the FCC's 2024 rule codifying Do Not Call protections for texts.

This article provides general information and is not legal advice.

The Northern District of Georgia's opinion in Radvansky v. 1-800-Flowers.com is attached.