TEXTS ARE CALLS: W.D. Texas Magistrate Recommends Partial Default Judgment And Modest Damages Under The TCPA’s Do-Not-Call Rules

Hi TCPAWorld!

In Callier v. American Auto Group LLC, No. 3:25-CV-00231-LS-MAT, 2026 WL 1741206 (W.D. Tex. May 29, 2026), the United States District Court for the Western District of Texas, El Paso Division, recommended granting in part and denying in part a defaulting defendant’s exposure to judgment on a TCPA Do-Not-Call claim, holding along the way that text messages qualify as “telephone calls” under Section 227(c). Defendant never showed up to fight that point, or any other point, but Plaintiff still walked away with only a fraction of what he asked for.

Plaintiff Brandon Callier alleged that American Auto Group, doing business as All American Auto Care, sent him two unsolicited text messages, on May 4 and May 20, 2025, marketing vehicle service contracts while his number sat on the National Do Not Call Registry. Defendant, a California LLC, was served through the California Secretary of State after the District Judge authorized alternative service. It never appeared, the Clerk entered default, and Plaintiff moved for default judgment and a permanent injunction on his individual claims only, setting aside the class allegations in his complaint.

The Court worked through the standard three-part default judgment analysis. On procedural propriety, all six Lindsey factors favored default: (1) no genuine factual disputes, (2) continuing prejudice to Plaintiff from the delay, (3) clearly established grounds for default, (4) no evidence of excusable neglect, (5) no undue harshness given Defendant’s notice and opportunity to respond, and (6) no apparent basis to set the default aside. The Court also confirmed subject matter jurisdiction over the federal TCPA claim, supplemental jurisdiction over the Texas claims, and specific personal jurisdiction over the California defendant based on text messages it intentionally directed into Texas.

The more interesting fight was on the merits, where the Court addressed a live split over whether Section 227(c)’s Do-Not-Call provisions, written before text messaging existed, reach text messages at all. It flagged the Central District of Illinois’s recent decision in Jones v. Blackstone Medical Services, LLC, which read the statute’s plain text to exclude texts and declined to defer to FCC guidance in light of McLaughlin Chiropractic Associates v. McKesson Corp. and Loper Bright Enterprises v. Raimondo. The Court found that view to be the outlier. Most district courts, along with the Ninth Circuit’s standing analysis in Hall v. Smosh Dot Com, Inc., continue to treat text messages as calls under Section 227(c), and several decisions still credit FCC guidance describing the Do-Not-Call rules as reaching both voice calls and text messages even after McLaughlin and Loper Bright. The Court adopted that majority view and held Plaintiff adequately pleaded a Section 227(c)(5) claim based on the two texts.

Because Texas Business and Commerce Code Section 305.053 is coextensive with the TCPA, the federal violation carried the state claim with it. That did not mean more money, though. Citing the well-established no-double-recovery rule, the Court declined to award separate statutory damages under Section 305.053 once Plaintiff had already been compensated for the same two texts under federal law.

Plaintiff fared worse on his claim under Chapter 302 of the Texas Business and Commerce Code, which requires telephone solicitors to hold a state registration. At the time of the May 2025 texts, Chapter 302 defined a “telephone solicitation” as a telephone call, not a text message, and the amendment adding text messages did not take effect until September 1, 2025, after both communications at issue here. The Court recommended denying default judgment on this claim entirely, though it nonetheless went on to recommend that Plaintiff’s counsel submit documentation of attorney’s fees under that same chapter’s fee-shifting provision, an odd coda to a claim the Court had just rejected.

On damages, the Court recommended $1,000, the statutory $500 per violation under Section 227(c)(5)(B) for the two texts, with no enhancement for willfulness and no stacking under the parallel state provision.

The Court also denied the request for a permanent injunction. Plaintiff had not alleged any contact from Defendant since the second text in May 2025, and without a realistic likelihood of future violations, the Court saw no basis to invoke its equitable powers.

This decision is worth a read for anyone tracking the post-McLaughlin, post- fight over whether the TCPA’s Do-Not-Call rules apply to text messages. Most courts, including this one, still treat texts as calls for Section 227(c) purposes. Default judgment can be tricky because even an unopposed motion gets real scrutiny, and courts will trim claims, deny double recovery, and decline injunctive relief where the pleadings do not support them. Counsel relying on parallel state telemarketing statutes should watch effective dates closely too, since Texas’s expansion of its telephone solicitation law to cover text messages applies only to conduct on or after September 1, 2025, the detail that sank Plaintiff’s Chapter 302 claim here.

We will keep you posted, TCPAWorld!