SEESAW: The Battle Over SMS Messages and the TCPA Takes Another Turn

3 Comments

Well we have a true seesaw battle on our hands here.

Courts continue to struggle with the issue of whether SMS Messages are covered by the TCPA’s DNC rules post-McKesson.

A couple of weeks back we reported on a decision making it a 3-3 tie– meaning three courts have held SMS messages are covered by the TCPA’s DNC rules and three courts holding they are not.

Well if this was a world series, the “Yes” side just took game seven.

In Mujahid v. Newity, 2025 WL 3140725 (N.D. Ill Nov. 10, 2025) the court denied defendant’s motion to dismiss an concluded SMS messages ARE calls under the TCPA for five reasons:

  1.   Webster’s Dictionary defines a “call” in this context as “ ‘to communicate with or try to get into communication with a person by a telephone.’ ” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953–54 (9th Cir. 2009) (citing Webster’s Third New International Dictionary 318 (2002)). The Court finds that a text message falls within this definition.
  2. Second, interpreting § 227(c) to include text messages is consistent with the text of § 227 as a whole.  The fact that the term “call” as used in § 227(b) encompasses “text messages,” supports the interpretation that the term “call” as used in § 227(c) also encompasses “text messages.”
  3. Third, interpreting § 227(c) to include text messages is confirmed by the purpose and context of the TCPA.
  4. Fourth, interpreting § 227(c) to include text messages is consistent with guidance from the FCC.
  5. Ultimately, the Court’s interpretation is consistent with the weight of authority.

I cleaned up this analysis substantially, but these are the court’s points.

Fascinating to watch this play out in real time. But with the score now 4-3 we will keep everyone posted!

Also will we see YOU at the big DNC.com TCPA Summit in Florida next month? Queenie and I will both be speaking and it will be a FANTASTIC event. Plus it will be your first chance to hear me talk politics live and in person as Troutman For America holds its first ever fundraiser. Will be a ton of fun and HIGHLY educational for all. 🙂

Register now!

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.

3 Comments

  1. Using the definition of a call is interesting because none of these SMS texts are likely sent by “telephone.” In fact, my laptop can send a text and I often do use it for that purpose. is it also a telephone call? Given this ruling and the definition used, wouldn’t an appropriate defense be to prove that a “telephone” was not in fact used? A phone call is intrusive as it requires somebody to answer and speak. A text message is unobtrusive and can be easily ignored or deleted. it would be nice to get some final clarity on this issue from an appellate court.

    Reply

    1. Even if the sender is not using a telephone to send a text, they are still getting in touch with the receiver through the receiver’s telephone by using their telephone number. Go ahead and publish your phone number if you don’t mind getting texts. I’ll be happy to pass it on to some scam baiters who can blast you with hundreds of texts at all hours of the day and night.

      Reply

  2. I feel like this is going to end up like the Creasy cases. A few shortsighted courts went for it, but the majority decided not to. You have to make two dumb assumptions to make this argument work. One is that a text can’t be considered a call under any definition. The second is that Congress intentionally wanted to allow telephone solicitations made in the form of texts to people registered on the DNC registry, and only police voice calls, all the while not knowing at the time that texts would be as ubiquitous as they are today.

    Reply

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