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A third court has come out with a decision holding SMS messages ARE subject to the TCPA’s DNC rules post McKesson, and it looks like an ongoing split of authority is to be assured.
Backing up, the TCPA’s DNC rules prevent “calls” to numbers on the national DNCR without permission or an EBR.
Prior to this year courts routinely held “calls” included text messages because the FCC said so. But the current Supreme Court has thrown out the rule that district courts must obey the FCC– so they are free to decide the issue anew.
We have already seen a near-farcical split on the issue with two courts issuing competing decisions on the matter on the same day.
CHAOS CHAOS: A different Court Holds SMS Messages ARE Subject to TCPA DNC Protections– On the SAME DAY A Different Court Disagreed
Since then the Chief Judge of the N.D.Fl. has issued an opinion concurring that SMS messages are not subject to the DNC rules while a split developed in Florida and we have been waiting for more data points.
Here’s the latest.
In Wilson v. Medvidi, Inc. 2025 WL 2856295 (N.D. Cal. Oct. 7, 2025) the court held SMS messages ARE “calls” for purposes of the TCPA’s DNC rules:
In short, nothing in the text, structure, or purpose of the TCPA suggests the distinction between written and oral communications that Defendant urges the Court to adopt. The Court concludes that a “telephone call” as used in 47 U.S.C. § 227(c) encompasses the types of text messages Plaintiff complains of.
Notably the court referred to Defendant’s argument as “tortured reasoning”:
According to Defendant, “by limiting this definition and intent to regulate text messages outlined in Section 64.1200(a), the FCC clearly indicated that, unless otherwise specified, a ‘call’ does not include a ‘text message’ or ‘SMS message.’ ” Mot. at 8. This tortured reasoning provides no basis to depart from the plain meaning of the statutory text as it has been understood by consumers, the FCC, and courts since the TCPA’s passage.
Eesh.
So one court says:
“[N]o ordinary person would think of a text message as a “telephone call.””
Another says:
“No basis to depart from the plain meaning of the statutory text as it has been understood by consumers, the FCC, and courts since the TCPA’s passage.”
Right.
This is what happens when you let courts make stuff up as they go along instead of having a reliable nationwide rule from the FCC.
Anyhoo, we’ll keep an eye on all of this.
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The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues. View all posts by Eric “Czar” Troutman
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TORTURED REASONING?: Another Court Holds SMS Messages ARE Subject to TCPA DNC Rules And How Can We Make Sense of It? – TCPAWorld
