MarketPro Accuses Plaintiffs of Trying to 'Stretch' TCPA’s ‘Statutory Text’

never was intended to prohibit, said MarketPro’s reply Wednesday (docket 1:23-cv-02364) in U.S. District Court for Maryland in Baltimore in support of its motion to dismiss. Plaintiffs Erin Wilcox and Connie Slingbaum allege that MarketPro, a real estate marketing company and lead generation business, bombards consumers whose numbers are listed on the national do not call registry with text-message solicitations seeking to buy their homes for cash “as is” (see 2308300002). But the plaintiffs can’t dispute that the actual texts at issue don’t offer “to sell any goods or services by their plain language,” MarketPro’s reply said. To avoid the “obvious resulting conclusion,” that the texts aren’t telephone solicitations under the TCPA, the plaintiffs instead try to frame MarketPro’s business model as taking advantage of a “loophole” in the TCPA, said the reply. MarketPro isn’t exploiting any loophole, it said. The messages at issue aren’t prohibited “based on the clear language of the TCPA,” it said. Congress enacted a “plain and unambiguous” statute to target phone calls and text messages sent for the unsolicited sale of goods and services, said the reply. “The texts here do not fall within that statute” because they sought to buy real estate from the plaintiffs, not sell goods or services, it said. Rather than accept the statute that Congress enacted, the plaintiffs ask the court to “wholly rewrite it” and adopt “far broader definitions” of telemarketing and phone solicitations than Congress intended, said the reply. Under their “rewrite,” the statute would require an analysis “of whether the sender’s business model could be viewed as offering any marginal benefit to the message recipient,” it said. But that’s not “relevant” in determining whether a message is telemarketing or a phone solicitation, said the reply. There’s no legislative history to support the plaintiffs’ “overbroad definition,” it said. Lacking that textual or legislative history, the plaintiffs instead wrongly base their arguments on their beliefs as to the “spirit” of the TCPA, it said. Courts have previously held that the TCPA’s “remedial purpose” doesn’t justify reading a provision more broadly than its language and the statutory scheme reasonably permit, it said. The plaintiffs ignore recent court decisions “expressly rejecting the same attempt to classify MarketPro’s text messages as telemarketing,” said the reply. They instead rely on certain cases that were not only wrongly decided, “but also involved a company with a different business model and text messages,” it said. The court isn’t bound to follow those “outlier” decisions “to the extent they are inconsistent with the TCPA’s statutory language,” the reply said. The plaintiffs can’t allege conduct by MarketPro that violates the TCPA, and so the court should dismiss their complaint with prejudice, it said.