‘BAMA BUSTER: N.D. Alabama Court Holds Texts Aren’t Calls and the TCPA’s DNC Protections Continue to Wither

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Need to update the map again!

Just yesterday I reported on a decision suggested the TCPA DNC rules do not apply to cell phones at all.

Well today we have a more traditional ruling concluding SMS messages are not “telephone calls” for 229(c) purposes– spreading this holding to ne territory in Alabama for the first time.

In Conrad v. Hart Consumer Products, 2026 WL 2741623 (N.D. Al. Sept. 16, 2026) the court concluded SMS messages are not calls for purposes of the TCPA’s DNC private right of action.

To get there the Court first had to leap a major 11th Cir. hurdle– the Drazen case seemingly held that texts are calls but the court correctly limited that holding as deciding only that receipt of a text can cause Article III standing and not necessarily statutory standing. That’s a bit of an angels dancing on the head of a pin situation– but I understand the logic and appreciate the holding.

More substantively for the rest of us the court goes on to determine Congress did not intend to include SMS messaging in the definition of “telephone call.” Once again the court looked at the ordinary meaning of words as used in 1991 and concluded the phrase referred to the transmission of sound over distances: “Thus, in 1991,
a ‘telephone call’ referred to communication via sound.”

That analysis alone was dispositive but the court went on to apply my favorite reasoning: The TCPA defines telephone solicitation to include “telephone call or message” yet the private right of action only allows suit when a person has received two or more “telephone calls.” Period. No mention of the word “message.” So plainly receipt of SMS does not provide a private right of action. The Conrad court summed this up beautifully and succinctly in its ruling and it got it correct in my view.

In the end the court concludes: “Until Congress broadens § 227(c)(5)’s right of action to the receipt of “text messages” or all “text solicitations,” Conrad has no personal right of action in this court.”

That begs the question–will Congress act here? We know the NCLC has asked for a bill expanding the TCPA. I suspect those calls will turn to howls soon enough.

In the meantime be sure to tune in in TWO SHORT HOURS for our discussion of the MASSIVE changes the FCC just brought to the TCPA’s revocation rules and the NEW NPRM that may change every message you send.

See you then.

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.

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