35
New Articles
Find Your Next Job !
Amidst the ongoing battle over whether SMS messages are calls for purposes of the federal TCPA– the statute that prevents robocalls to cell phones– a court in Texas just rules SMS messages are covered by the statute based on an out-of-circuit ruling from 40 years ago that had nothing to do with telecom.
In Alvarez v. Fiesta Nissan, 2026 WL 202930 (S.D. Tex. Jan 26, 2026) the court struggled with the issue of whether a “telephone call” referenced in the TCPA included SMS messages, given the fact that SMS messages really didn’t exist back when the TCPA was passed in 1991.
To solve the problem the court took unusual inspiration from the decision in In re Erickson, 815 F.2d 1090 (7th Cir. 1987), which the court finds “remarkably relevant.”
in Erickson the famed Judge Easterbrook considered a Wisconsin statute that made certain farming property unavailable to satisfy a civil judgment, allowing a farmer to retain “one mower” and “one hay loader.”
As the Alvarez court analyzed the ruling:
Just one problem: since the law’s passage in 1935, farm technology had changed considerably. Old horse-drawn “mowers” were replaced by hydraulic, tractor-mounted haybines with hay conditioners, and “hay loaders” were replaced by automatic bailing/tying machines. Id. at 1092–93. And yet, the court found that the new technology was embraced by the old terms. Specifically, Judge Easterbrook wrote that a “ ‘mower’ is not limited to the thing called a mower today,” because “[a] statutory word of description does not designate a particular item (e.g., “a Massey-Ferguson Mower, Model GY– 2589, manufactured in 1935, serial number 3875808”) but a class of things that share some important feature.” Id. at 1092 (emphasis added). Indeed, “a mower with a built-in stereo cassette deck would still be a ‘mower’, … because it would still cut the hay,” yet with “a second function, entertainment, just as the haybine has a second function, crushing the hay.” Id. at 1093.
From this the Alvarez court reasoned:
Just as a mower that both cuts and conditions hay is still a mower, a telephone which communicates texts and voice is still a telephone. And just as an aircraft built a hundred years from now such that it “could not have been dreamed today” can be embraced by 2012 statute regulating aircraft, so can a call from a telephone built in 2025—or 2125 for that matter—be embraced by a 1991 statute.
Ok…
Just one problem with this analysis.
Defendant never argued a smartphone receiving SMS messages isn’t a phone. It argued SMS messages aren’t calls– and those are two very different arguments.
Erickson dealt with the question of what category of technology was covered by a statute based on the essential functionalities of that technology. So Erickson is indeed on point if the issue is whether a smartphone qualifies as a cell phone although it can do lots of other things rather than just accept phone calls. Then the case would be dead on.
But the issue here is whether a telephone call is covered by the statute, not whether a smartphone is still a phone. So, yes the Skunkworks Dark Star Maverick pilots that can hit Mach 10 is still just an airplane under a 1915 statute and a Pixel 10 Pro Fold is still just a “telephone” although it can fold itself into a singularity and conjure AI to rule the world.
But none of that answers the question of whether an SMS message is a phone call.
I suppose one could argue that Erickson stands for the broader concept that words in statutes must be read to keep up with technology, but that really wasn’t Easterbrook’s point. It was that statutes refer to CATEGORIES not to SPECIFIC items. But the CATEGORIES still must be interpreted according to the intent of the legislature.
So did Congress intend the category of things called “telephone calls” to include “SMS”? That is a question Alvarez does not directly pass on– although that is the ultimate issue.
To me this is like saying a statute that was passed in 1900 and governed “vehicles” applied to airplanes that had not yet been invented because, hey, both move you along. Probably a case on point from the 1930s. Maybe I’ll go find it and use it in my next brief.
Bottom line– law is fun. And really understanding what makes a court/judge tick can be the difference between winning and losing due to some 40-year-old-out-of-circuit-off-topic-farming case.
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 ©2026 National Law Forum, LLC
Find Your Next Job !
Amidst the ongoing battle over whether SMS messages are calls for purposes of the federal TCPA– the statute that prevents robocalls to cell phones– a court in Texas just rules SMS messages are covered by the statute based on an out-of-circuit ruling from 40 years ago that had nothing to do with telecom.
In Alvarez v. Fiesta Nissan, 2026 WL 202930 (S.D. Tex. Jan 26, 2026) the court struggled with the issue of whether a “telephone call” referenced in the TCPA included SMS messages, given the fact that SMS messages really didn’t exist back when the TCPA was passed in 1991.
To solve the problem the court took unusual inspiration from the decision in In re Erickson, 815 F.2d 1090 (7th Cir. 1987), which the court finds “remarkably relevant.”
in Erickson the famed Judge Easterbrook considered a Wisconsin statute that made certain farming property unavailable to satisfy a civil judgment, allowing a farmer to retain “one mower” and “one hay loader.”
As the Alvarez court analyzed the ruling:
Just one problem: since the law’s passage in 1935, farm technology had changed considerably. Old horse-drawn “mowers” were replaced by hydraulic, tractor-mounted haybines with hay conditioners, and “hay loaders” were replaced by automatic bailing/tying machines. Id. at 1092–93. And yet, the court found that the new technology was embraced by the old terms. Specifically, Judge Easterbrook wrote that a “ ‘mower’ is not limited to the thing called a mower today,” because “[a] statutory word of description does not designate a particular item (e.g., “a Massey-Ferguson Mower, Model GY– 2589, manufactured in 1935, serial number 3875808”) but a class of things that share some important feature.” Id. at 1092 (emphasis added). Indeed, “a mower with a built-in stereo cassette deck would still be a ‘mower’, … because it would still cut the hay,” yet with “a second function, entertainment, just as the haybine has a second function, crushing the hay.” Id. at 1093.
From this the Alvarez court reasoned:
Just as a mower that both cuts and conditions hay is still a mower, a telephone which communicates texts and voice is still a telephone. And just as an aircraft built a hundred years from now such that it “could not have been dreamed today” can be embraced by 2012 statute regulating aircraft, so can a call from a telephone built in 2025—or 2125 for that matter—be embraced by a 1991 statute.
Ok…
Just one problem with this analysis.
Defendant never argued a smartphone receiving SMS messages isn’t a phone. It argued SMS messages aren’t calls– and those are two very different arguments.
Erickson dealt with the question of what category of technology was covered by a statute based on the essential functionalities of that technology. So Erickson is indeed on point if the issue is whether a smartphone qualifies as a cell phone although it can do lots of other things rather than just accept phone calls. Then the case would be dead on.
But the issue here is whether a telephone call is covered by the statute, not whether a smartphone is still a phone. So, yes the Skunkworks Dark Star Maverick pilots that can hit Mach 10 is still just an airplane under a 1915 statute and a Pixel 10 Pro Fold is still just a “telephone” although it can fold itself into a singularity and conjure AI to rule the world.
But none of that answers the question of whether an SMS message is a phone call.
I suppose one could argue that Erickson stands for the broader concept that words in statutes must be read to keep up with technology, but that really wasn’t Easterbrook’s point. It was that statutes refer to CATEGORIES not to SPECIFIC items. But the CATEGORIES still must be interpreted according to the intent of the legislature.
So did Congress intend the category of things called “telephone calls” to include “SMS”? That is a question Alvarez does not directly pass on– although that is the ultimate issue.
To me this is like saying a statute that was passed in 1900 and governed “vehicles” applied to airplanes that had not yet been invented because, hey, both move you along. Probably a case on point from the 1930s. Maybe I’ll go find it and use it in my next brief.
Bottom line– law is fun. And really understanding what makes a court/judge tick can be the difference between winning and losing due to some 40-year-old-out-of-circuit-off-topic-farming case.
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 ©2026 National Law Forum, LLC