TEXTS AREN’T CALLS!: State Appellate Court Holds Text Messages Are Not Telephone Calls Were Purposes of Criminal Statute

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Since 2009 Courts have been applying FCC rulings suggesting that text messages are calls subject to the TCPA even though text messages didn’t exist at the time the TCPA was passed and the statute does not mention text messages in its primary restrictions.

With the death of Chevron deference a renewed focus has been put on the issue. Courts have now been freed up to evaluate anew whether text messages really qualify as a “call” under the TCPA.

Well an appellate court in New Mexico just held last week that text messages are not calls, at least for the purpose of interpreting a criminal statute banning harassing telephone calls.

In State of New Mexico v. Valerio 2025 WL 1621551 (Appls N.M. June 6, 2025) the defendant had been convicted under a statute making it illegal to “telephone another” for harassment when he had sent a series of threatening text messages to an ex-girlfriend.

On appeal, however, the appellate court noted the language of the statute repeatedly referenced telephone calls and not text messages. It determined the language of the statute simply could not be read to include text messages, even though texts are a common way of using a telephone:

The State argues that a plain language construction will lead to absurd results in a time when “text messaging is considered the prevalent form of communication in the United States.” According to the State, “[t]o conclude that the primary form of cell phone communication does not qualify as “use of a telephone” would render the telephone harassment statute partially useless” and “might permit violent, threatening text messages to be sent in New Mexico with no legal consequences.” Even if text messaging is more prevalent than telephone calls, we are not persuaded that a plain language reading would either render the telephone statute useless or preclude legal consequences for the type of harassment that occurred here. 

Wow.

So there you go. At least one court agrees that statutes regulating the use of a telephone and telephone calls does not cover text messages.

We’ll keep an eye on this.

And I know most of you already have your tickets but Law Conference of Champions is just about sold out– and ticket boxes go out Friday!!

Chat soon.

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Published by Eric "Czar" Troutman

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.

1 Comment

  1. So the statute they referred to, didn’t cover text messages as it was written in 1967 DECADES before they even existed (yes, clearly it couldn’t have been specified – duh). While they said the legislature needs to amend/update said law(s) is a good point. At least part of their ‘logic’ was lacking:

    “Considering the statute’s language, history, and purpose, we conclude that a plain language reading of the telephone harassment statute is consistent with the Legislature’s intent in enacting Section 30-20-12. The conduct proscribed by Section 18 30-20-12(A), as drafted by the Legislature and read in light of the plain language of the statute, is ‘calling’ someone on the telephone with the intent to ‘terrify, intimidate, threaten, harass, annoy or offend.’”

    https://law.justia.com/cases/new-mexico/court-of-appeals/2025/a-1-ca-41515.html

    So “Considering the statute’s language, history, and purpose…to terrify, intimidate, threaten, harass, annoy or offend.” At the time they were obviously covering every possible known capability of said telephone in regards to said behavior – they couldn’t have been more clear.

    The irony in this case is if it was in fact telephone CALLS there would be a ‘he said/she said’ componet thus creating all new issues. As he used texts there is an undeniable black & white paper trail record that PROVES he did as claimed by the victim (as the state rightfully alleged).

    The real sad aspect is as is currently in the news this week is the ongoing manhunt for an estranged father with custody rights that (allegedly) murdered all 3 of his under 10 years old daughters – that’s the world we live in.

    I pray we don’t see a headline similar or about this mother and/or child being subjected to some horrific fate. Maybe that’s what it will take to get the laws amended – sad, but true…

    Reply

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