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The World of the Telephone Consumer Protection Act
Those of you who attended Law Conference of Champions III last week heard from the Czar on the critical impact of the Supreme Court’s recent decision in McKesson.
That SCOTUS ruling through out Hobbs act deference requirements to FCC TCPA orders and allowed courts to decide for themselves what the provisions of the TCPA mean.
As I predicted from the stage– chaos will follow. And among the FIRST chaotic changes I expected was some courts to treat SMS messages as effectively TCPA exempt.
Well it just happened.
In Jones, et al. v. Blackstone, 2025 WL 2042764 (C.D. Ill. July 21, 2025) a court tossed a TCPA DNC claim against the defendant finding that SMS messages simply are not covered by the statute’s DNC provisions.
Here is the meat of the Court’s analysis:
Under the principles of statutory interpretation, a court must start with the text of the statute to ascertain its plain meaning. U.S. v. Melvin, 948 F.3d 848, 851 (7th Cir. 2020)… Section 227(c)(5) simultaneously explicitly refers to a “telephone call”, a term not defined in the statute itself, and remains silent as to its application to text messages. Text messaging was not an available technology in 1991, and thus “telephone call” would not have included text messages or SMS messages… Moreover, in today’s American parlance, “telephone call” means something entirely different from “text message”. Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages…
The Court understands the FCC has a level of expertise as to the various forms of communication existing at the time of the TCPA’s enactment as well as now. See Loper Bright, 603 U.S. at 402 (“[An agency’s] expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’ ”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While the Court affords a certain amount of respect to the FCC’s interpretation of the terms used in the TCPA, the fact remains that Section 227(c)(5) of the TCPA includes “telephone call” and does not mention text messages or SMS messages, and nowhere does the TCPA define “telephone call” to include text and/or SMS messages. As illustrated above, the FCC’s interpretation of call to include text messages is a complicated one, and potentially does not even apply to Section 227(c)(5).
Wow. And Booyah.
As I said, let the chaos begin.
The Court’s simple “ordinary meaning” analysis will be attractive to many courts. But even the Jones court agreed it was “imminently reasonable” to apply the TCPA’s DNC rules to SMS messages– so MANY courts will.
Indeed the Jones court essentially afforded zero deference to the FCC’s rulings– doubtful that many courts will be so disrespectful to Commission handiwork on the subject. (Even after McKesson courts are supposed to afford some respect to the FCC– who knows what that means though.)
So there you go. Chaos. Madness. TCPA style.
Fun. But also, not so fun.
Take aways:
Hang in there TCPAWorld.
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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 J. Troutman
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CHAOS: The First Court Just Found the TCPA’s DNC Rules Do Not Apply to Text Messages– So Let the Chaos Begin! – TCPAWorld
