The legal landscape around SMS marketing is becoming more complex and more consequential for ecommerce businesses.

A recent Illinois federal court decision in Rabbitt v. Rohrman Midwest Motors adds new momentum to a growing divide among courts: whether a text message qualifies as a “call” under the Telephone Consumer Protection Act (TCPA). 

In Rabbitt, the court concluded that it can. This brings SMS messages within the scope of the TCPA’s Do Not Call (DNC) rules.

For ecommerce brands that rely on SMS as a core marketing channel, this is more than a technical legal question. It is a development that directly impacts compliance strategies, litigation risk, and operational decision-making.

A Deepening Split

The Ecommerce Innovation Alliance (EIA) has been closely tracking this issue because it sits at the center of modern TCPA litigation. As we’ve previously reported—including in analysis by guest contributor Artin Betpera—courts are sharply divided on whether the TCPA’s reference to a “telephone call” in 47 U.S.C. § 227(c)(5) includes text messages.

In our previous coverage of Jones v. Blackstone Medical Services, we discussed how a federal court in Illinois took a narrow view—holding that “telephone call” does not include SMS. The court emphasized that Congress used specific language in 1991, before text messaging existed, and that courts must now interpret the statute directly rather than defer to FCC guidance following recent Supreme Court decisions like Loper Bright Enterprises v. Raimondo and McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation.

That decision was not an outlier. As highlighted in prior posts, including analysis by guest contributor Artin Betpera, courts in cases such as Davis v. CVS Pharmacy and El Sayed v. Naturopathica Holistic Health reached similar conclusions, reinforcing a defense-friendly interpretation.

But other courts have gone the opposite direction. Decisions like Wilson v. MEDVIDI and Mujahid v. Newity have interpreted “call” more broadly, often relying on prior FCC interpretations and earlier case law.  The Rabbitt decision aligns with these broader interpretations.

The Rabbitt Analysis

Rather than analyzing the phrase “telephone call” in isolation, the court looked at the broader statutory and regulatory framework. It emphasized that § 227(c)(5) creates a private right of action tied to violations of regulations issued under § 227(c)(1)—and those regulations, including 47 C.F.R. § 64.1200, have been interpreted to apply to both calls and text messages.

The court also relied on longstanding judicial precedent, including:

• Satterfield v. Simon & Schuster (9th Cir. 2009), which treated text messages as calls under the TCPA
• The Supreme Court’s observation in Campbell-Ewald that texts to cell phones fall within TCPA protections

Even in a post-Loper Bright environment, the court found these precedents persuasive under standard principles of statutory interpretation and reliance on prior court decisions.

Just as importantly for ecommerce businesses, the court rejected the argument that DNC protections apply only to residential landlines. Instead, it accepted that wireless numbers—now the primary contact method for most consumers—are covered.

A Policy Gap EIA Continues to Fight

With courts split, the same SMS campaign could be treated differently depending on jurisdiction—creating continued need to assume that text messages are subject to the TCPA’s requirements unless and until the issue is definitively resolved by the Supreme Court. 

This issue reflects a broader structural problem the EIA has consistently raised: legacy statutes are being stretched to govern modern technologies. The TCPA was enacted in 1991—long before SMS became a foundational ecommerce channel. Today, courts are filling in the gaps, often reaching different conclusions about how the law applies.

The result is unclear rules for businesses trying to comply in good faith, inconsistent enforcement across jurisdictions as well as disproportionate burden on smaller ecommerce operators.

The EIA continues to advocate for clear, modernized frameworks that reflect how businesses and consumers actually communicate—ensuring consumer protection without undermining innovation.

Join the EIA today to help strengthen and shape policies that affect all ecommerce businesses. Together, we can continue to create the future of ecommerce. Subscribe to EIA email updates to stay informed on key developments and their impact on your business. 

Ecommerce Innovation Alliance provides members with analysis of litigation and regulatory developments affecting online commerce and digital marketing. This post is for informational purposes only and does not constitute legal advice.