Need to update the map again!
Just yesterday I reported on a decision suggested the TCPA DNC rules do not apply to cell phones at all.
Well today we have a more traditional ruling concluding SMS messages are not “telephone calls” for 229(c) purposes– spreading this holding to ne territory in Alabama for the first time.
In Conrad v. Hart Consumer Products, 2026 WL 2741623 (N.D. Al. Sept. 16, 2026) the court concluded SMS messages are not calls for purposes of the TCPA’s DNC private right of action.
To get there the Court first had to leap a major 11th Cir. hurdle– the Drazen case seemingly held that texts are calls but the court correctly limited that holding as deciding only that receipt of a text can cause Article III standing and not necessarily statutory standing. That’s a bit of an angels dancing on the head of a pin situation– but I understand the logic and appreciate the holding.
More substantively for the rest of us the court goes on to determine Congress did not intend to include SMS messaging in the definition of “telephone call.” Once again the court looked at the ordinary meaning of words as used in 1991 and concluded the phrase referred to the transmission of sound over distances: “Thus, in 1991,
a ‘telephone call’ referred to communication via sound.”
That analysis alone was dispositive but the court went on to apply my favorite reasoning: The TCPA defines telephone solicitation to include “telephone call or message” yet the private right of action only allows suit when a person has received two or more “telephone calls.” Period. No mention of the word “message.” So plainly receipt of SMS does not provide a private right of action. The Conrad court summed this up beautifully and succinctly in its ruling and it got it correct in my view.
In the end the court concludes: “Until Congress broadens § 227(c)(5)’s right of action to the receipt of “text messages” or all “text solicitations,” Conrad has no personal right of action in this court.”
That begs the question–will Congress act here? We know the NCLC has asked for a bill expanding the TCPA. I suspect those calls will turn to howls soon enough.
In the meantime be sure to tune in in TWO SHORT HOURS for our discussion of the MASSIVE changes the FCC just brought to the TCPA’s revocation rules and the NEW NPRM that may change every message you send.
See you then.
Chat soon!

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