SLIPPING AWAY: A Once Promising Argument Is Fading As Courts Pile Up Finding SMS Messages Are Calls Under the TCPA

6 Comments

Back in 1991 when the TCPA was passed Congress was concerned with a rash of scattershot telemarketing calls to LANDLINE phones.

These phones typically could not be silenced and would ring incessantly until answered–filling entire households with noise that would interrupt the focus of ever family member.

Worse yet, somebody would actually have to get up and travel some distance to wherever the phone was positioned in the house to answer it.

Dinners destroyed. Conversations usurped.

It was a real problem.

Today virtually nobody has a landline and cell phones– always on a person’s body– can be instantly silenced. And when it comes to SMS messages most phones don’t even provide a notification beyond a visual note.

Still, however, many courts continue to apply the 1991 TCPA’s provisions–banning “telephone calls” to “residential numbers” to SMS messages to cell phones.

Now, I get it.

People don’t like spam text messages.

Neither do I.

But Courts generally don’t re-write statutes to make the law read the way they think it should (but in TCPAWorld they do it all the  time.)

Here’s the latest example.

In McGonigle v. Shopperschoice, 2026 WL 413198 (M.D. La. Feb. 13, 2025) the court held the TCPA’s DNC provisions applied to SMS messages.

The court recognized that nobody today would call an SMS message a “telephone call.” It also acknowledged that the word “telephone” implied communication by sound. Nonetheless it determined a statute covering telephone calls must cover SMS messages because a plane is a plane even 100 years from now:

This is not a good analogy and it is similar to the hay loader issue looked at in Fiesta Nissan. 

The issue isn’t whether a smartphone is a type of telephone– it is.

The issue is whether an SMS message is a telephone call–it is not.

Take a typical speed limit.  65 MPH.

Not long from now cars will be able to fly with relative ease.

When a car takes off from your house and travels over a highway is the speed limit still 65?

The car remains the car but flying is not driving. So the 65 MPH restriction does not apply– does it? (We will soon know.)

So it is with phones today. They have new features that did not exist in 1991. But applying the TCPA to every app that allows for communication is like applying a speed limit designed to govern road speed to every form of travel in the future.

Regardless, the majority of courts now seem to be lining up behind the idea that an SMS message is a “telephone call” as strange as that may seem.

We’ll keep an eye on this.

And if you want the latest catalogue of decisions on this and all TCPA-related content be sure to request a copy of the 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance!

FIRST DAY OF CZARMAS 2026: THE 2026 TROUTMAN AMIN, LLP TCPA ANNUAL REVIEW, Presented By Contact Center Compliance is now FREE for the Asking!!!!!!!!!!!

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.

6 Comments

  1. To look at the technical aspects, SMS (text messages) used to not actually constitute calls, because (under TDM) the digital equivalents of one way conversations would go over separate channels (called signaling channels), and not the voice circuit itself. In other words, SMS (text messages) were not contemporaneous with voice. And they were sent over packet switched transmissions (e.g. SS7 links, and later over separate data circuit elements. ).

    Now, they (text messages) are conveyed as packets in the same IP transmission pathways as the calls themselves, and are “conversational” in nature (or could be).

    But, the answer I think the real answer is in the the funding mechanisms for TRS (Telecom Relay Service), which defines TTY, or Teletype service, as the visual analogue to voice. The manners in which the TRS funding mechanisms are implemented are generally based upon the fees that are assessed on *voice telephone calls* and is used to pay for the requisite facilities to support TRS (which enables a TTY text message based communication, visual analogue to a contemporaneous audio call).

    Simple. Now, from a technical standpoint and a funding standpoint, text messages are calls.

    disclaimer: Not an attorney.

    Reply

  2. “But applying the TCPA to every app that allows for communication…”

    Dude, “every app”!?!?! That’s the exact opposite of what is happening! Ever heard of Facebook, X/Twitter, Telegram, Signal, WhatsApp, Snapchat, Insta, too many to name! ALL are apps that “allow for communication.” Yet virtually none (and they’ve all been around for years) are any in line for any type of TCPA applicability (correct me if I’m wrong).

    While the laws are often out of touch with basic common sense/reality – hadn’t it already been accepted for years that texts ARE calls per FCC?

    As AW stated so eloquently “…the visual analogue to voice…” statistically how many people use SMS instead of voice comms on their cell phones?

    Unfortunately, in Trim v Reward Zone (by the way one of the biggest serial SMS violators there is/was) the argument that SMS = 227(b) vio’s was lost due to the Websters definition of one word: voice. Sheesh!! While the aspect they neglected to raise was, pause for dramatic effect…

    “…the visual analogue to voice…”

    That could/should have sealed the deal, SMS = 227(b) & (c) vio’s when meeting other proper criteria. Oh and as far as the landline to cell discussion as to “injury” inflicted the fact the NDNC registrant count has increased by 12,237,170 from 2020 through 2024 (to 253,721,138!!). Gee as SMS use was increasing as the main method of communicating via phone (or today’s equivalent of calling someone) See p. 5: https://www.ftc.gov/system/files/ftc_gov/pdf/DNC-Data-Book-2024.pdf

    Reply

    1. James;

      According to the files from the national DNC:

      As of 12/31/2020, there were 242,084,805 distinct numbers on the registry.
      As of 12/31/2021, there were 244,919,680 distinct numbers;
      As of 12/31/2022 there were 247,415,418 distinct numbers;
      As of 12/31/2023 there were 250,311,458 distinct numbers;
      As of 12/31/2024 there were 254,611,987 distinct numbers;
      As of 12/31/2025, there were 259,059,769 distinct numbers.
      As of this morning (02/16/2026) there were 259,519,020 distinct numbers on the list.

      The order sums it up. “Cell phones are covered by the DNC. The DNC protects residential numbers. Text messages are delivered to Cell Phones. Therefore if a number is on the DNC list, and the number has been sent text messages, those messages sent to those telephone numbers are presumed to be residential cellular phones covered by the TCPA”.

      Not a lawyer.

      Reply

      1. woolfson;

        So intrigued by the seeming discrepancy. I double checked my source…

        Thus I should have noted (although it is noted in the FTC 2024 Data Book I linked to). The numbers I posted represent fiscal years ending on Sept. 30. My bad.

        Noteworthy, is using your #’s the increase from 2020-2024 is: 12,527,182. If you could be so kind and post a link to your source, as a data junkie I’d really appreciate it, especially as it is more current (literally thru today!) 😉

  3. Analogies are used for illustration, not to prove a theory. The underlying theory that a call is a way to reach someone by telephone, thereby making a text a call, is a self-evident truth. It doesn’t need an analogy to be valid. However analogies are fun, so here’s mine – a house call:

    Someone could come to your house and either knock or ring a doorbell. Both count as a house calls, as the person is coming to your house to reach you. Both require the person to know the address of your house.

    Now, lets say a law enacted before the doorbell was invented in 1831, prohibited tradesmen from making house calls, and defined a house call as knocking on someone’s door. Does the law later allow tradesmen to ring a doorbell, because they didn’t technically knock on a door?

    Similarly, a person trying to reach you by telephone could make a voice call or send a text. Both need the functionality of your phone, and both require the person trying to reach you to know your telephone number, which is basically the address of your phone.

    Text messages didn’t exist in 1991, so they weren’t thought of as telephone calls back then. However, just as ringing a doorbell would count as a house call after 1831, texts count as calls now. They’re not permitted simply because they were not explicitly mentioned in the private right of action back in 1991.

    Reply

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