[author: Eric Troutman]
Just a beautiful case to report.
In McGonigle v. Pure Green 2026 WL 111338 (S.D. Fl. Jan. 15, 2026) the district court granted the defense motion to stay a TCPA suit involving SMS messages to numbers on the DNC.
Before I go any further though:
See video here.
Ok, now we can continue.
A court in the S.D. Fl has already held SMS messages are not calls but this case appears ready to go even further.
Although the court did not yet rule on the merits of a pending motion to dismiss, the court took a “preliminary peek” and found the motion to be at least facially meritorious. The Court categorically rejected the Plaintiff’s argument that Loper Bright required the court to continue to defer to FCC rulings as “filling up the details” in the TCPA’s provisions:
“Determining whether “telephone call” in § 227(c)(5) includes text messages would likely more than double the number of private causes of action authorized by the TCPA. Doubling the scope of the provision is not “filling up the details.” In actuality, § 227(c)(1)(E) may run afoul of the nondelegation doctrine, since there are no delimitations on the discretion it grants the Commission. But we do not need to determine that now. Instead, we merely reject Plaintiff’s request that we use § 227(c)(1)(E) to resurrect Chevron out of the grave. § 227(c)(1)(E) does not require this Court to defer to the Commission’s interpretation of § 227(c)(5). And we remind Plaintiff that “agencies have no special competence in resolving statutory ambiguities. Courts do.” Loper Bright, 603 U.S. at 373.”
I have been saying for years 227(c)(1)(E) may violate the delegation rules but no court has ever agreed until this decision.
Now, granted, it is preliminary and not final–again for now this is just a discovery ruling– but the court found it “crystal clear” that the issue of whether an SMS message is a “call” for TCPA purposes would be determined by the court alone without deference to the Commission.
Very very interesting. We will keep an eye on this one.
Chat soon.
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