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Those of you who attended Law Conference of Champions III last week heard from Troutman on the critical impact of the Supreme Court’s recent decision in McKesson.
That SCOTUS ruling through out Hobbs act deference requirements to FCC TCPA orders and allowed courts to decide for themselves what the provisions of the TCPA mean.
As I predicted from the stage– chaos will follow. And among the FIRST chaotic changes I expected was some courts to treat SMS messages as effectively TCPA exempt.
Well it just happened.
In Jones, et al. v. Blackstone, 2025 WL 2042764 (C.D. Ill. July 21, 2025) a court tossed a TCPA DNC claim against the defendant finding that SMS messages simply are not covered by the statute’s DNC provisions.
Here is the meat of the Court’s analysis:
Under the principles of statutory interpretation, a court must start with the text of the statute to ascertain its plain meaning. U.S. v. Melvin, 948 F.3d 848, 851 (7th Cir. 2020)… Section 227(c)(5) simultaneously explicitly refers to a “telephone call”, a term not defined in the statute itself, and remains silent as to its application to text messages. Text messaging was not an available technology in 1991, and thus “telephone call” would not have included text messages or SMS messages… Moreover, in today’s American parlance, “telephone call” means something entirely different from “text message”. Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages…
The Court understands the FCC has a level of expertise as to the various forms of communication existing at the time of the TCPA’s enactment as well as now. See Loper Bright, 603 U.S. at 402 (“[An agency’s] expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’ ”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While the Court affords a certain amount of respect to the FCC’s interpretation of the terms used in the TCPA, the fact remains that Section 227(c)(5) of the TCPA includes “telephone call” and does not mention text messages or SMS messages, and nowhere does the TCPA define “telephone call” to include text and/or SMS messages. As illustrated above, the FCC’s interpretation of call to include text messages is a complicated one, and potentially does not even apply to Section 227(c)(5).
Wow. And Booyah.
As I said, let the chaos begin.
The Court’s simple “ordinary meaning” analysis will be attractive to many courts. But even the Jones court agreed it was “imminently reasonable” to apply the TCPA’s DNC rules to SMS messages– so MANY courts will.
Indeed the Jones court essentially afforded zero deference to the FCC’s rulings– doubtful that many courts will be so disrespectful to Commission handiwork on the subject. (Even after McKesson courts are supposed to afford some respect to the FCC– who knows what that means though.)
So there you go. Chaos. Madness. TCPA style.
Fun. But also, not so fun.
Take aways:
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Find Your Next Job !
Those of you who attended Law Conference of Champions III last week heard from Troutman on the critical impact of the Supreme Court’s recent decision in McKesson.
That SCOTUS ruling through out Hobbs act deference requirements to FCC TCPA orders and allowed courts to decide for themselves what the provisions of the TCPA mean.
As I predicted from the stage– chaos will follow. And among the FIRST chaotic changes I expected was some courts to treat SMS messages as effectively TCPA exempt.
Well it just happened.
In Jones, et al. v. Blackstone, 2025 WL 2042764 (C.D. Ill. July 21, 2025) a court tossed a TCPA DNC claim against the defendant finding that SMS messages simply are not covered by the statute’s DNC provisions.
Here is the meat of the Court’s analysis:
Under the principles of statutory interpretation, a court must start with the text of the statute to ascertain its plain meaning. U.S. v. Melvin, 948 F.3d 848, 851 (7th Cir. 2020)… Section 227(c)(5) simultaneously explicitly refers to a “telephone call”, a term not defined in the statute itself, and remains silent as to its application to text messages. Text messaging was not an available technology in 1991, and thus “telephone call” would not have included text messages or SMS messages… Moreover, in today’s American parlance, “telephone call” means something entirely different from “text message”. Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages…
The Court understands the FCC has a level of expertise as to the various forms of communication existing at the time of the TCPA’s enactment as well as now. See Loper Bright, 603 U.S. at 402 (“[An agency’s] expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’ ”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While the Court affords a certain amount of respect to the FCC’s interpretation of the terms used in the TCPA, the fact remains that Section 227(c)(5) of the TCPA includes “telephone call” and does not mention text messages or SMS messages, and nowhere does the TCPA define “telephone call” to include text and/or SMS messages. As illustrated above, the FCC’s interpretation of call to include text messages is a complicated one, and potentially does not even apply to Section 227(c)(5).
Wow. And Booyah.
As I said, let the chaos begin.
The Court’s simple “ordinary meaning” analysis will be attractive to many courts. But even the Jones court agreed it was “imminently reasonable” to apply the TCPA’s DNC rules to SMS messages– so MANY courts will.
Indeed the Jones court essentially afforded zero deference to the FCC’s rulings– doubtful that many courts will be so disrespectful to Commission handiwork on the subject. (Even after McKesson courts are supposed to afford some respect to the FCC– who knows what that means though.)
So there you go. Chaos. Madness. TCPA style.
Fun. But also, not so fun.
Take aways:
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2025 National Law Forum, LLC