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As I discussed at the big TCPA Summit yesterday the case law is somewhat fractured on the issue of whether SMS messages are “calls” for purposes of the TCPA’s DNC rules following McKesson.
While the score was 3-3 (i.e. three courts ruling in either direction) just a couple of weeks ago, the tide has turned against callers as #biglaw firms have entered the defense and met with the failure so characteristic of their involvement in TCPA cases.
The latest setback comes with a great big asterisk, however.
In Dilanyan v. Hugo Boss Fashions, Inc., 2:25-cv-05093-JLS-BFM (C.D. Cal. Dec. 3, 2025) the dying Hugo Boss brand (does anyone wear Boss anymore?) was sued in a TCPA class action over alleged SMS messages sent outside of the TCPA’s marketing time limits.
Boss moved to dismiss arguing SMS messages aren’t calls under the TCPA’s DNC rules (which include the time limits.)
The court refused to dismiss the case on that ground holding the Ninth Circuit’s earlier ruling in Satterfield –which held SMS messages are calls for 227(b) purposes– was broad enough to cover the 227(c) claim before it.
While this is a questionable ruling the Court decided to certify the issue for immediate interlocutory review– and that’s the asterisk I was referring to.
The Dilanyan court is essentially advising the appellate court that this is a tricky issue and one that needs to be looked at right away. While the appellate court is free to turn down the request they often will heed a district court’s certification as one worth looking into.
Does this mean the Ninth Circuit Court of Appeals will soon rule on the issue of whether SMS are “calls” subject to DNC restrictions? Maybe. We will have to wait to see what happens here.
We will, obviously, keep an eye on this.
For now, however, the score is 7-3 in favor of courts holding SMS messages ARE subject to the TCPA’s DNC rules– so act accordingly.
Much love.
Also– literally only a week left to retain Troutman Amin, LLP before our rates rise! Be smart.
Chat soon.
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Find Your Next Job !
As I discussed at the big TCPA Summit yesterday the case law is somewhat fractured on the issue of whether SMS messages are “calls” for purposes of the TCPA’s DNC rules following McKesson.
While the score was 3-3 (i.e. three courts ruling in either direction) just a couple of weeks ago, the tide has turned against callers as #biglaw firms have entered the defense and met with the failure so characteristic of their involvement in TCPA cases.
The latest setback comes with a great big asterisk, however.
In Dilanyan v. Hugo Boss Fashions, Inc., 2:25-cv-05093-JLS-BFM (C.D. Cal. Dec. 3, 2025) the dying Hugo Boss brand (does anyone wear Boss anymore?) was sued in a TCPA class action over alleged SMS messages sent outside of the TCPA’s marketing time limits.
Boss moved to dismiss arguing SMS messages aren’t calls under the TCPA’s DNC rules (which include the time limits.)
The court refused to dismiss the case on that ground holding the Ninth Circuit’s earlier ruling in Satterfield –which held SMS messages are calls for 227(b) purposes– was broad enough to cover the 227(c) claim before it.
While this is a questionable ruling the Court decided to certify the issue for immediate interlocutory review– and that’s the asterisk I was referring to.
The Dilanyan court is essentially advising the appellate court that this is a tricky issue and one that needs to be looked at right away. While the appellate court is free to turn down the request they often will heed a district court’s certification as one worth looking into.
Does this mean the Ninth Circuit Court of Appeals will soon rule on the issue of whether SMS are “calls” subject to DNC restrictions? Maybe. We will have to wait to see what happens here.
We will, obviously, keep an eye on this.
For now, however, the score is 7-3 in favor of courts holding SMS messages ARE subject to the TCPA’s DNC rules– so act accordingly.
Much love.
Also– literally only a week left to retain Troutman Amin, LLP before our rates rise! Be smart.
Chat soon.
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