TEXTS ARE CALLS (AGAIN): Southern District of Texas Court Uses “Mower” Analogy To Find Texts Are Calls Under 227(c)(5) Post-McKesson

Hi TCPAWorld!

We have been tracking the post-McKesson/Loper Bright landscape closely, specifically regarding whether a text message constitutes a “telephone call” under the TCPA’s private right of action for DNC violations.

Without Chevron deference to the FCC’s long-standing interpretation, district courts are now tasked with independently interpreting the 1991 statute. While some recent decisions interpret text messages as not falling within the statutory definition of a “call,” a new decision out of the Southern District of Texas has ruled that it does—utilizing an odd analogy regarding farm equipment to get there.

In Alvarez v. Fiesta Nissan, Inc., 2026 WL 202930 (S.D. Tex. Jan. 26, 2026), SDTX Chief Judge Randy Crane denied a defendant’s motion to dismiss—holding that text messages are “telephone calls” under Section 227(c)(5).

The court looked to the ordinary meaning of the words at the time of the TCPA’s 1991 enactment. It found that the 1990 definition of “call” was broad: “to get or try to get into communication by telephone.”

To address the argument that a “telephone” must transmit sound, the court adopted the reasoning from the Seventh Circuit’s 1987 decision in In re Erickson. In that case, the court had to decide if modern farm equipment counted as a “mower” under a 1935 statute. The Seventh Circuit judge in that case reasoned then that a “mower” is not limited to the specific item available in 1935, but a “class of things that share some important feature.” Even if a mower had a stereo added to it, it was still a mower.

Applying that logic here, Judge Crane wrote:

“Just as a mower that both cuts and conditions hay is still a mower, a telephone which communicates texts and voice is still a telephone. And just as an aircraft built a hundred years from now … can be embraced by [a] 2012 statute … so can a call from a telephone built in 2025 … be embraced by a 1991 statute.”

And he ultimately concluded:

“At bottom, it is true that a telephone in 1991 was an instrument ‘for producing sounds at a distance.’ So is a telephone today. But that instrument may also send messages via ‘calls.’ Thus, to make a ‘telephone call,’ for purposes of § 227(c)(5), is to ‘to get or try to get into communication’ with an ‘instrument for producing sounds at a distance.’ A text message therefore falls reasonably within the literal language of the statute.”

This ruling stands in contrast to other recent decisions causing friction in district courts across the country. And I’m certain we will see more of these “texts are calls” or “texs are not call” rulings soon—keeping the debating ongoing.

For a complete picture of how courts are splitting on this issue, see our previous blogs below:

• TEXTS ARE NOT CALLS!: Second Court Holds Text Messages Cannot Violate TCPA’s DNC Provisions And It Is Getting Interesting Now – TCPAWorld
• CHAOS CHAOS: A different Court Holds SMS Messages ARE Subject to TCPA DNC Protections- On the SAME DAY A Different Court Disagreed – TCPAWorld
• CHAOS: The First Court Just Found the TCPA’s DNC Rules Do Not Apply to Text Messages- So Let the Chaos Begin! – TCPAWorld
• MASSIVE HOLDING: Ninth Circuit Appears to Confirm SMS Messages Are “Calls” Under the TCPA En Route to Holding MMS Video Is not a “Prerecorded” Call – TCPAWorld
• HIGH STAKES: Another Federal Court Rules SMS Messages Are Calls Under the TCPA- But Certifies Issue for Appellate Court Review – TCPAWorld
• RESPECT OR DEFERENCE?: District Court Finds that Text Messages Are Calls Under the TCPA, Without Looking at the Definition of “Call” – TCPAWorld
• TORTURED REASONING?: Another Court Holds SMS Messages ARE Subject to TCPA DNC Rules And How Can We Make Sense of It? – TCPAWorld

Also, don’t forget to get your tickets to the Law Conference of Champions ASAP before prices rise or we well out!!