Following the United States Supreme Court’s decision in McLaughlin v. McKesson, companies facing alleged Telephone Consumer Protection Act (“TCPA”) violations are able to challenge areas of the TCPA that had been relatively foreclosed by previous Federal Communications Commission (“FCC”) interpretations or guidance. Post-McLaughlin, the most prevalent challenge has focused on the meaning of the term “telephone call” within the TCPA’s Do-Not-Call (“DNC”) private right of action provision. Below, we discuss the decisions which have addressed whether “text messages” are telephone calls under the TCPA’s DNC provision, the reasoning of those decisions, and what these decisions mean for your business.
Text Messages = Telephone Calls for DNC Private Right of Action?
Codified at 47 U.S.C. § 227(c)(5), the TCPA’s DNC private right of action permits “[any] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity” to bring a private right of action for violation of the statute. Following McLaughlin, companies facing TCPA claims have focused on the term “telephone call,” arguing that text messages are not telephone calls within the meaning of the statute and, therefore, aggrieved consumers cannot bring TCPA DNC claims for the receipt of unsolicited text messages. Shortly after McLaughlin, we discussed a decision of an Illinois district court which applied a commonsense approach in its ruling that text messages were not telephone calls for purposes of the TCPA’s DNC private right of action. Subsequently, two Florida district courts (Davis v. CVS Pharmacy, Inc. and El Sayed v. Naturopathica Holistic Health, Inc.) applied similar reasoning in ruling that text messages were not telephone calls for TCPA purposes.
On the opposite end of the spectrum, at least three district courts have interpreted “telephone call” broadly and ruled that text messages were telephone calls under the statute. Applying the ordinary public meaning of “telephone call” when the TCPA was enacted in 1991 (“call” was defined as a means of communicating with others by telephone), a New York District Court recently held that text messages are telephone calls for purposes of the TCPA’s DNC private right of action (Wilson v. Better Mortg. Corp., No. 25 Civ. 5503, 2025 U.S. Dist. LEXIS 251694 (S.D.N.Y. Dec. 5, 2025)). Utilizing similar reasoning, two other district courts ruled that text messages are telephone calls (Wilson v. MEDVIDI Inc., No. 5:25-cv-03996-BLF, 2025 U.S. Dist. LEXIS 198827 (N.D. Cal. Oct. 7, 2025) and Mujahid v. Newity, LLC,No. 25 Civ. 8012, 2025 U.S. Dist. LEXIS 221088, (N.D. Ill Nov. 10, 2025)).
Tread Carefully When Sending Text Messages to Consumers on the DNC Registry
Although the answer to this blog’s question may seem obvious, the above decisions clearly illustrate that courts believe otherwise. As a result, whether text messages are telephone calls for purposes of the DNC’s private right of action will vary among jurisdictions until federal appellate courts decide the question.
While new lines of attack in TCPA litigation are recommended for TCPA defendants, avoiding TCPA litigation altogether is clearly the best advice. Before sending commercial text messages to consumers, companies should, among other things: (1) obtain consumers’ prior consent to the receipt of such messages; and (2) quickly honor consumers’ requests to opt-out from the receipt of future marketing-related text messages. By implementing these policies and procedures, companies can significantly reduce the odds of becoming the target of a TCPA lawsuit.
Complying with the TCPA and other federal and state telemarketing laws requires the expertise of attorneys who are on the forefront of the latest developments in the telemarketing law space. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on federal and state telemarketing law compliance; and (2) zealously defend companies named as defendants in TCPA lawsuits.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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