RESPECT OR DEFERENCE?: District Court Finds that Text Messages Are Calls Under the TCPA, Without Looking at the Definition of “Call”

The Telephone Consumer Protection Act (“TCPA”) is far from the first statute to regulate something that did not exist at time of its enaction. The Federal Wiretap Act was enacted in the sixties, yet it now regulates emails. And the Sherman Antitrust Act was enacted in the twentieth century, yet it now regulates online marketplaces. For the TCPA, text messages are the key component that was missing at enaction.

Following the Supreme Court’s ruling in McLaughlin Chiropractic Assocs. v. McKesson Corp., 606 U.S. 146 (2025), which requires district courts to independently analyze the text of the TCPA without deferring to agency interpretations of the statute, courts are repeatedly deciding the following question: does a text message constitute a “telephone solicitation” and a “call” under the TCPA’s Do-Not-Call provisions?

A definite split is appearing in these rulings. Some jurisdictions are finding that text messages are actionable under the TCPA. Others are finding the opposite. A new ruling from the Southern District of California falls into the latter category (as rulings within the Ninth Circuit have thus far done) but applied slightly different methodology than previous cases. See Esquivel v. Mona Lee, Inc., No. 3:25-CV-00607-H-BLM, 2025 WL 3275607 (S.D. Cal. Nov. 24, 2025).

Most cases have looked at the statutory text of the TCPA, which explicitly authorizes a private right of action (allowing folks to sue) only for individuals who have “received more than one telephone call….” 47 U.S.C. § 227(c)(5) (emphasis added).

Okay, so what exactly is a call?

This is where most courts have focused their analysis up to this point. That means turning to the definition of the word “call” and connotation of “telephone call” to determine whether the statute prohibits text messages. See Jones v. Blackstone Med. Servs., LLC, 792 F. Supp. 3d 894, 899 (C.D. Ill. 2025) (citing 47 U.S.C. § 227(c)(5)), appeal docketed sub nom., Steidinger v. Blackstone Medical Services, No. 25-2398 (7th Cir. Aug. 12, 2025). The Blackstone court (and others) determined that text messages are not telephone solicitations. Id.; see Davis v. CVS Pharmacy, Inc., No. 4:24-CV-477-AW-MAF, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025). Yet still other courts used their own dictionaries and found that text messages are telephone solicitations. See Mujahid v. Newity, LLC, No. 25 C 8012, 2025 WL 3140725 (N.D. Ill. Nov. 10, 2025).

Interestingly, the Esquivel court left the dictionary on the shelf. Esquivel, 2025 WL 3275607, at *3. To satisfy the independent analysis required by McKesson, the court instead opted to analyze the intention of the statute as reflected in the statutory text. Id. at *2–3. Because “Section 227(c) ‘protect[s] residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object[,]’” the Esquivel court determined that, in line with Ninth Circuit precedent and FCC guidance, text messages are indeed actionable under 47 U.S.C. § 227(c)(5). Id.

McKesson says that district courts may afford due “respect” to FCC guidance but cannot defer completely to its rulemaking. See McKesson, 606 U.S. at 152. In its citation of FCC guidance, the Esquivel court certainly tests the boundaries of what McKesson permits in terms of listening to the FCC.

The Esquivel defendants also attempted to argue that the face of the complaint demonstrated an established business relationship, defeating the claim as a matter of law. Esquivel, 2025 WL 3275607, at *3. The court quickly dismissed that argument, citing alleged communications such as “Stop” and “Mona Lee stop sending me messages.” Id. You know what, it is quite hard to disagree with the court on whether those allegations defeat a motion to dismiss.

Whether text messages continue to be actionable under the TCPA’s Do-Not-Call provisions remains to be seen, and we are sure to have more rulings come in on the subject. A circuit court will inevitably weigh in here and may choose to do so sooner rather than later.