The Supreme Court’s opinion in McLaughlin v. McKesson has ushered in a new era for TCPA litigation, and opened doors to challenges that defendants were precluded from making prior to the Supreme Court’s decision.  The most recent litigation battleground McLaughlin has opened is the question of whether the words “telephone call” used in 47 U.S.C. § 227(c)(5) means “text message”.  The answer to this question is of great importance, and will shape the limits of the TCPA’s private right of action that permits suit for calls to numbers registered on the National Do Not Call Registry (DNC).

Under the regulations promulgated by the FCC pursuant to rulemaking power delegated to it by Congress under 47 U.S.C. § 227(c)(2), businesses are prohibited from making “telephone solicitations” to “residential telephone subscribers” whose numbers are registered on the National Do Not Call Registry (DNC).  47 C.F.R. § 64.1200(c)(2).  Congress created a private right of action, under which residential subscribers who have received “more than one telephone call” in violation of the FCC’s rules may sue for statutory damages of $500 per call, up to $1,500 for willful violations.  47 U.S.C. § 227(c)(5).  

Plaintiffs’ lawyers file thousands of putative TCPA class actions every year, a huge chunk of which arise from text messages allegedly sent to consumers in violation of the FCC’s DNC rules.  And, until recently, courts have concluded that a telephone call is a text message because the FCC said so in its prior interpretive rulings.  Defendants were generally precluded from challenging the validity of the FCC’s interpretation because either courts deferred to it under Chevron deference, or found the Hobbs Act precluded defendants from challenging the FCC’s interpretation.

But that changed when the Supreme Court did away with these doctrines in two opinions—Loper Bright Enters. v. Raimondo, 603 U.S. 369, 371 (2024) and McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 149 (2025).  The Supremes directed lower courts facing such issues of statutory interpretation to go back to basics, and “determine the meaning of the law under ordinary principles of statutory interpretation.”  And with that, the Court’s dual opinions opened the door for defendants to present this straightforward issue of statutory interpretation to courts: when Congress used the words “telephone call” to delimit the private right of action under 47 U.S.C. § 227(c)(5) in 1991, did it mean those words to include a “text message”?

So is a “telephone call” a “text message”?  The answer seems obvious—it’s not.  A telephone call is when your phone goes *ring ring* and you pick up and say hello.  Right?  But perhaps predictably, District Courts have diverged in their answers to what would seem to be a fairly straightforward question of law.  

The first District Court ruling on this issue, Jones v. Blackstone Med. Servs., 792 F. Supp. 3d 894 (C.D. Ill. 2025), was all common-sense.  Congress couldn’t have meant the words “telephone call” to mean “text message” in 1991 because text messages hadn’t been invented.  Plus, the common understanding of the word “telephone call” is a voice call, so the term cannot mean a “text message”.  Jones was then followed by the rulings in Davis v. CVS Pharmacy, Inc. 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025), and El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759 (M.D. Fla. Oct. 25, 2025), which used similar reasoning in holding that the words “telephone call” used in Section 227(c)(5) don’t mean “text message”.  Jones is currently on appeal to the Seventh Circuit.  Briefing is still underway in the appeal, with the Appellee’s brief due on December 22, 2025—meaning that we might expect an opinion sometime in later 2026, or early 2027.  

On the flip side of the coin, other District Courts have held the opposite: that “telephone call” does mean “text message”.  Wilson v. MEDVIDI Inc., No. 5:25-cv-03996-BLF, 2025 WL 2856295 (N.D. Cal. Oct. 7, 2025); Mujahid v. Newity, 2025 WL 3140725 (N.D. Ill Nov. 10, 2025).  These rulings are largely based on prior case law and FCC rulings that interpret the words “make any call” in neighboring Section 227(b), which regulates calls using an Automatic Telephone Dialing System (ATDS), and artificial or pre-recorded voice technology.  The central reasoning in each of these cases is the word “call” broadly means “to communicate with or try to get into communication with a person by a telephone.”  And a text messages is a way in which someone can “communicate with or to try to get into communication with a person by a telephone.”  Therefore, the word “call” encompasses text messages.

The problem with this line of cases is that Congress didn’t use the words “to make any call” in Section 227(c)(5).  So the reasoning employed by these courts in interpreting “telephone call” to mean” text message” is problematic.  Why?  Because Congress used a narrower term—“telephone call”—in delimiting the private right of action under Section 227(c)(5).  And courts will presume that different words, used by Congress in different parts of a statute, were intended to have different meanings.  Stanley v. City of Sanford, Fla., 606 U.S. 46, 53 (2025).

So what did Congress mean by the words “telephone call”?  The dictionary is a helpful resource that helps us find the right answer.  The definition of the word “telephone” is “a device by which sound (such as speech) is converted into electrical impulses and transmitted (as by wire or radio waves) to one or more specific receivers.”  Telephone, Merriam-Webster’s Collegiate Dictionary (11th Ed. 2019).  Given this common meaning of the word “telephone”, a “telephone call” can’t mean a “text message” because a text message doesn’t involve the transmission of “sound”.  And, if the word “call” already means to communicate “with a person by telephone” then that makes the use of the word “telephone” before “call” in Section 227(c)(5) completely redundant.  

The availability of a new line of attack in the defense of TCPA litigation is helpful for defendants.  But the objective of any business should be to avoid being caught in the crosshairs of a TCPA class action in the first place.  It therefore remains critical that businesses obtain consent before sending texts to numbers on the DNC, honor opt-out requests, and remove reassigned telephone numbers from texting lists (including by implementing reassigned number database scrubs).  Through these block-and-tackle compliance efforts, companies can greatly reduce the odds of being sued for TCPA violations, and give themselves effective defenses in the event of a lawsuit.

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