Greetings TCPAWorld!
We’ve got a big one today, and yes, I’m allowed to be a little excited about this one because Troutman Amin, LLP secured the win!
In James v. Smarter Contact, Inc., No. 8:25-cv-1657-KKM-SPF (M.D. Fla. Mar. 31, 2026), Judge Kathryn Kimball Mizelle granted Smarter Contact’s Motion to Dismiss and tossed the entire case with prejudice. And the reasoning? “Because a ‘telephone call’ as understood in 1991 did not encompass a text message.” You can read the Order here!
By way of background, Plaintiff, an Arizona resident, alleged that she received over 20 telemarketing text messages from rotating phone numbers associated with a company called Joe Homebuyer, beginning in July 2023. The messages were allegedly real estate solicitations asking her to sell her home. James’s number had been on the National Do-Not-Call Registry since 2008. Here, Plaintiff originally sued Joe Homebuyer, but through discovery in that lawsuit, she allegedly learned that Smarter Contact was the subscriber and user of the phone numbers at issue. So in turn, Plaintiff dismissed that case and came after Smarter Contact instead, asserting two claims under 47 U.S.C. § 227(c)(5): one for DNC Registry violations and one for failure to provide proper sender identification under 47 C.F.R. § 64.1200(d)(4). Plaintiff also sought class certification.
Now, here’s the thing. Both of Plaintiff’s claims were brought exclusively under Section 227(c)(5), which provides a private right of action for a person who has received more than one “telephone call” in violation of the regulations prescribed under that subsection. The statute does not define “telephone call.” And specifically post-McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), district courts addressing this issue have treated themselves as free to interpret the TCPA independently, without being bound by prior FCC interpretations or deference-based precedent. That’s exactly what Judge Mizelle did here.
The Court’s analysis was thorough, starting with dictionaries from the era of enactment. The Random House Dictionary (1987) defined “call” as “an act or instance of telephoning.” Merriam-Webster’s Collegiate Dictionary (1993) defined it as “the act of calling on the telephone.” And “telephone” itself? An “apparatus, system, or process for transmission of sound or speech to a distant point” (Random House, 1987) and “an instrument for reproducing sounds at a distance” (Merriam-Webster, 1993). A text message does not use a telephone to reproduce sounds at a distance. Under a plain text reading, that should really be the end of the inquiry. But Plaintiff raised several additional arguments, and the Court took each one head-on.
Plaintiff and several other courts, including the Ninth Circuit in Howard v. Republican National Committee, 164 F.4th 1119 (9th Cir. 2026), and the Southern District of New York in Wilson v. Better Mortgage Corp., 811 F. Supp. 3d 631 (S.D.N.Y. 2025), have tried to get around the “telephone” problem by focusing exclusively on the verb definition of “call”, “to communicate or try to communicate with by telephone.” The Court called this an error because in Section 227(c)(5), “call” is used as a noun, not a verb. Moreover, even if you use the verb definition, a text message still isn’t communicating by reproducing sounds at a distance. Those courts compound the mistake, Judge Mizelle explained, by neglecting to consider the modifying effect of “telephone” on “call.” You can’t just ignore half the statutory phrase.
This is a critical point that many courts on the other side of this split have been glossing over, and it’s interesting to see it called out so directly.
The Court also rejected the argument that interpreting “telephone” in this way would somehow exclude modern voice calls made from smartphones. Not so. A voice call from a modern smartphone still involves reproducing sounds at a distance. The fact that the phone can also text, browse the internet, and run apps doesn’t change the nature of the voice call itself. The meaning of “telephone” clarifies the broader word “call”; it doesn’t carve out voice calls made on devices that happen to have additional capabilities.
Next, Plaintiff asserted that because Congress amended the TCPA multiple times after the FCC interpreted the statute as covering text messages, Congress must have intended to adopt that interpretation. Judge Mizelle rejected this, too. The text is clear, and when the text is clear, the inquiry ends. And to the extent there was any doubt, the fact that Congress later amended the TCPA to specifically add “text message” and “text messaging service” in other provisions actually undermines Plaintiff’s argument. Congress understood the distinction between a telephone call and a text message, and it legislated accordingly.
Plaintiff also asserted the “any call” argument. Section 227(b)(1)(A) uses the phrase “any call” when regulating calls to paging services and cellular telephones. Plaintiff argued that since pagers display written text, “call” must encompass text-based communications. But the Court pointed out that Section 227(b)(1)(A) uses “any call,” not “telephone call.” Those are different phrases, and the distinction matters. The Court pointed to Davis v. CVS Pharmacy, Inc., 797 F. Supp. 3d 1270, 1273 (N.D. Fla. 2025), for the same point.
Finally, Plaintiff made a policy argument: dismissal would “upend the normal operation of the statute to undermine consumer privacy rights.” In other words, Congress couldn’t have meant this. Judge Mizelle declined the invitation to rewrite the statute. “My role is not to look beyond clear language to ascertain Congress’s purpose.” If the statute doesn’t say what Plaintiff wishes it said, Congress is welcome to fix it.
One important point worth noting is that the Order addresses traditional text messages under Section 227(c)(5). Judge Mizelle expressly noted that other forms of communication, such as audio messages or “voice texts,” might present a different question because they involve the reproduction of sound. So while James is a major win in the DNC text-message space, it does not purport to answer every TCPA question involving text-based communications.
The Order also addresses a point that certainly will continue to be raised going forward: the Supreme Court has assumed, without deciding, that text messages may qualify as “calls” under Section 227(b). But as Judge Mizelle recognized, that assumption does not resolve whether the narrower phrase “telephone call” in Section 227(c)(5) includes text messages. That distinction matters, and it helps explain why this issue has produced a genuine split.
So what are the takeaways?
First, this is another addition to the growing body of case law holding that text messages are not “telephone calls” under Section 227(c)(5). The Court addressed the principal arguments being raised in the current split and rejected each one on textualist grounds.
Second, the “modifier” analysis is becoming the key differentiator in this split. Courts that find texts are “calls” tend to focus on the word “call” in isolation, often using the verb’s definition. Courts that are finding texts are not “telephone calls” are properly considering the full statutory phrase and giving meaning to both words. Judge Mizelle’s opinion puts this distinction front and center as clearly as any opinion to date.
Third, this was dismissed with prejudice. Judge Mizelle found that amendment would be futile because the deficiency is legal, not factual. No amount of additional factual allegations can transform a text message into a telephone call.
Lastly, of course, this is another proud win for Troutman Amin, LLP. We live this stuff every day, and results like this are why our clients trust us to handle their TCPA matters. If you’re facing TCPA litigation or need compliance guidance, you know where to find us.
If you want a deep dive into how the SMS split is shaping up, the revocation crossover question, and real-world strategies for deploying compliant text message programs amid all this uncertainty, I’ll be hosting a panel on exactly that at the Law Conference of Champions IV, May 4-6, 2026, in Irvine, California! We’ll be walking through the nationwide court split, the Florida intra-district divide, timing traps, and practical compliance takeaways you can actually use. Trust me, you don’t want to miss it!
As always,
Keep it legal, keep it smart, and stay ahead of the game
Talk soon!
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