COLORADO DOUBLES DOWN: D. Colorado Holds, Once Again, That Text Messages Are Not “Telephone Calls” Under The TCPA DNC Provision

Hey there TCPAWorld! I’m back with great news!

Just five days after the Radvansky decision holding that text messages are not “telephone calls” under the TCPA’s DNC rules, another judge in the same district has reached the exact same conclusion.

In Brown v. Hursh Group, LLC, 2026 WL 2906613 (D. Colo. Sept. 28, 2026), the court found that text messages are not “telephone calls” under § 227(c)(5) and dismissed the class action complaint WITH PREJUDICE!

We love to see courts reading the statute for what it actually says, right? So, let’s get into it.

Here, Brown’s first argument for why his texts should be actionable under the TCPA’s DNC provision was that the plain meaning of the word “call” encompasses any attempt to communicate by phone and therefore includes text messages. In an attempt to persuade the Court, he also pointed to the TCPA’s definition of “telephone solicitations,” which includes “the initiation of a telephone call or message.”

The Court, however, wasn’t persuaded.

While the Tenth Circuit has yet to address this issue, the Court relied heavily on the Seventh Circuit’s decision in Steidinger, where the Court based their decision by looking at the dictionary definition of the words “telephone” and “call” from when the TCPA was enacted in 1991. Steidinger v. Blackstone Med. Servs., 182 F.4th 532 (7th Cir. 2026). At that time, a “telephone” was understood as “an instrument for reproducing sounds at a distance.” Meanwhile, a “call” meant communicating or attempting to communicate by telephone. The Court essentially concluded that because texts do not reproduce sound, they do not fall within the ordinary meaning of a “telephone call.”

Now, while I agree with looking to the meaning of “telephone call” when the TCPA was enacted in 1991, I’m not sure the answer would be much different today. Sure, telephones—and the way we use them to communicate—have evolved significantly since 1991. But a telephone call is still just that, a telephone call.

Congress’s choice of words only reinforces that conclusion. In addressing this issue, Judge Neureiter adopted the reasoning of Radvansky v. 1st Class Medical, 2026 WL 2858562 (D. Colo. Sept. 23, 2026), decided just days earlier. In Radvansky, the Court relied on Davis v. CVS Pharmacy, Inc., 797 F. Supp. 3d 1270, 1274 (N.D. Fla. 2025), which recognized that Congress used the phrase “telephone call or message” in a neighboring provision. If “telephone call” already encompassed every “message,” there would have been no reason for Congress to separately include both terms. In other words, if Congress intended § 227(c)(5) to include messages, it could have said so.

Brown then argued that even after Loper Bright and McLaughlin the FCC’s interpretation of “call” and “telephone call” is still entitled to “appropriate respect”. The Court, again, looked at Steidinger and Radvansky and rejected Brown’s argument.

The key distinction was which provision the FCC was interpreting. The FCC extended the DNC Registry protections to text messages pursuant to § 227(c)(3), which uses the broader term “telephone solicitations.”  But Brown’s private right of action arose under § 227(c)(5), which refers specifically to “telephone calls.”

The Court also noted that even if the FCC did in fact interpret “telephone calls” as used in § 227(c)(5) to include text messages, after McLaughlin courts are no longer bound by the FCC’s interpretation. Under McLaughlin, courts must independently interpret the statute using ordinary principles of statutory interpretation, while giving the agency’s views appropriate respect. The Court found Steidinger’s analysis persuasive and concluded that the FCC’s interpretation did not change the result.

Ultimately, the Court concluded that Brown’s text messages could not support a private right of action under § 227(c)(5). Because his claims were based entirely on texts, the Court granted Hursh’s Motion to Dismiss and dismissed the Complaint with prejudice.

It looks like more courts are taking a fresh look at the statutory language and reaching the same conclusion, one that in my view, gets the statutory text right. At the end of the day, ordinary principles of statutory interpretation require courts give statutory language its plain meaning, and § 227(c)(5) says “telephone calls.” In 1991 and in 2026 that means one thing: a call, not a text. And if this trend continues, text-only DNC claims may have a much harder road ahead. As always, stay tuned, we’ll keep you posted as courts continue to weigh in.