Are Text Messages Calls Under the TCPA? The Court Split Over Texts and Do Not Call Claims

The table lists the decisions named in the sources we read. It is not a complete census. Fox Rothschild's count of about 29 district court decisions since the Supreme Court's McLaughlin ruling does not name most of them, and new decisions arrive every month.

Note the column for the section at issue. Several decisions that are quoted for the proposition that a text is a call were decided under 227(b), the autodialer section, which uses different words.

The plaintiffs received marketing texts and calls from Blackstone Medical Services urging them to buy home sleep tests. They said the messages continued after they replied STOP or added their numbers to the National Do Not Call Registry. They filed a consolidated class action in the Central District of Illinois under the TCPA and the Florida Telephone Solicitation Act.

Blackstone moved to dismiss the federal claims on one ground: the section the plaintiffs sued under, 227(c)(5), creates a private right of action for telephone calls, and texts are not calls. The district court agreed, dismissed the federal claims and declined to keep the Florida claim.

The appeal was argued on 21 May 2026 and decided on 14 July 2026 by Judges Kirsch, Pryor and Maldonado. Judge Kirsch wrote that the appeal turned on a single issue, whether text messages are telephone calls within the meaning of 227(c)(5), and the panel affirmed. A footnote records that the plaintiffs did not argue their suit could proceed on the alleged voice calls alone, so that argument was treated as waived.

The opinion starts with ordinary meaning at the time of enactment. It cites a 1991 dictionary defining a telephone as an instrument for reproducing sounds at a distance and a call as getting into communication by telephone. From that it concludes a telephone call in 1991 referred to communication by sound, and that text messages do not reproduce sounds. The court accepted that statutes can reach new technology, and said the march of technology alone does not fix the meaning of the words.

The second step is structure. Sections 227(c)(1) to (c)(4), which direct the FCC to make rules and create the registry, speak of telephone solicitations. The statute defines that term as the initiation of a telephone call or message. Section 227(c)(5), by contrast, gives a private claim to a person who has received more than one telephone call. The court presumed that the different term carries a different meaning, and that call and message refer to different forms of communication.

To decide which one a text is, the court looked at how Congress treated faxes in 1991. The statute regulates sending a message by fax machine, which is text sent by an electronic device over a telephone line. Congress called those messages. The court concluded modern texts are better understood as messages too.

The opinion closes on purpose. Congress found that telemarketing calls could tie up lines needed for emergencies. Spam texts do not pose that risk, the court wrote, so it is at least reasonable that the private claim covers calls and not messages.

• Ordinary meaning in 1991: a telephone call was communication by sound
• Different words: telephone solicitation includes a call or message; 227(c)(5) says telephone call only
• The fax analogy: Congress treated text sent over a phone line as a message
• Other amendments: Congress added text messages to 227(e) in 2018 and left 227(c)(5) unchanged
• Purpose: the emergency-line concern behind the 1991 act does not apply to texts

The FCC has long read call to include text messages, and in a rule published in January 2024 it extended National Do Not Call Registry protections to texts. The plaintiffs relied on both.

The court gave two answers. First, the registry was created under 227(c)(3), which speaks of telephone solicitations. An FCC rule made under that paragraph does not tell a court what telephone call means in 227(c)(5). The court also noted that the FCC has not made a rule defining the term for the purposes of 227(c)(5).

Second, even if the FCC's reading did bear on the question, the court said it was not bound by it. It cited McLaughlin Chiropractic Associates v. McKesson Corp., a 2025 Supreme Court decision, for the rule that a court interprets the statute as courts traditionally do, giving appropriate respect to the agency's interpretation. The plaintiffs argued that appropriate respect meant deference. The court disagreed and reviewed the statutory question afresh.

The opinion is careful about its limits. It distinguishes the earlier cases that called texts calls, including its own, on the ground that they concerned 227(b), a section with a broadly framed private right of action for any violation of the subsection. It observes that the Supreme Court assumed in two cases that 227(b) reaches texts without deciding the point.

It leaves agency enforcement in place. The final paragraph says repeated, unwanted text messages are a nuisance that may be curbed through agency action under other provisions of section 227, which the court leaves undisturbed. The FCC's regulation applying the registry and calling-hours rules to texts is still published.

It does not decide any state-law question. The Florida claim in the case was dismissed without a ruling on its merits when the district court declined supplemental jurisdiction. Florida's statute defines a telephonic sales call to include a text message in its own words.

Two days after the ruling, Fox Rothschild counted roughly 18 district court decisions since McLaughlin holding that texts are calls and about 11 holding they are not. On the first side it names Pero v. Brown-Daub Chevrolet of Nazareth, decided 17 June 2026 in the Eastern District of Pennsylvania, which read the statute's call or message language as showing that Congress meant to reach more than voice calls.

On the other side, Faegre Drinker reported in March 2026 that district courts in the Eleventh Circuit were increasingly finding no private right of action for texts, naming two Northern District of Georgia decisions and a Middle District of Florida recommendation from February 2026. Mintz, writing on 28 September 2026, lists four more district decisions after Steidinger that excluded texts or cellular numbers from the Do Not Call claims, in Alabama, Florida, North Carolina and Missouri.

The next appellate ruling is expected from the Eleventh Circuit. Radvansky v. Kendo Holdings is on appeal there as No. 26-10837. K&L Gates expects the split to widen and considers a petition to the Supreme Court likely, especially after the Eleventh Circuit rules. We found no decision in that appeal as of 12 November 2026.

The first consequence is geographic. A private Do Not Call suit over texts cannot proceed in federal court in Illinois, Indiana or Wisconsin. In a district that follows Pero, the same facts state a claim. K&L Gates points out the difficulty of acting on that: a business often cannot tell where all of its contacts are located.

The second is that the rules a business works to are unchanged. The FCC's regulation still applies the registry to texts. State laws in Florida, Texas and elsewhere cover texts expressly. A sender that stops checking the registry for texts because of one circuit's ruling is relying on a litigation defense in three states and an open question everywhere else.

The third is about records. K&L Gates advises keeping strong consent records, honoring opt-outs promptly and monitoring state law. Those are the same facts a business would need to prove under either reading.

Congress could resolve it. Our research notes record a bill, H.R. 8311, introduced on 15 April 2026 and referred to the House Energy and Commerce Committee, that would extend Do Not Call coverage and widen the private right of action. It has not advanced.

An Eleventh Circuit decision agreeing with the Seventh would cover Florida, Georgia and Alabama. A decision going the other way would create a direct conflict between appeals courts on the same section.

The list below is what we will check when this post is next reviewed. None of these events has a fixed date.

• A ruling in Radvansky v. Kendo Holdings, Eleventh Circuit No. 26-10837
• A petition asking the Supreme Court to review Steidinger or a later decision
• District court rulings in the Second, Third, Fifth and Ninth Circuits, where no appeals court has addressed 227(c)(5)
• Movement on H.R. 8311 or a similar bill