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!
Chat soon.