A wave of new suits across the nation have held the TCPA’s DNC provisions do not apply to text messages.
Courts in California seem to be the only true hold out on this rule. For instance just last week the Court in Combs v. UG Franhise Opeations, 2026 WL 2970636 (C.D. Cal Oct. 2, 2026) held SMS are to be considered telephone calls under the TCPA’s DNC provisions.
Not to make this a political issue– but these recent rulings are entirely the fault of the Republican National Committee. Seriously.
Its easy enough to understand why– the Ninth Circuit Court of Appeals has an unusually robust body of law on this issue and none of it is favorable to callers.
Indeed the Ninth Circuit’s landmark decision in Satterfield back in 2009 was among the first rulings in the nation to apply the TCPA to SMS messages–albeit in connection with a claim under 227(b).
However those earlier rulings were the result of reliance on FCC rulings courts need no longer apply. So why are they?
Well the RNCC was recently sued for sending unwanted video messages embedded in SMS to unconsenting individuals. The issue was brought to the Ninth Circuit Court of Appeals for review as to whether such MMS messages constitute “prerecorded calls” since an audio message is played.
Now obviously since these messages were sent via MMS the TCPA section at issue was 227(b)(1)(A)– which applies to calls to cell phones– and not 227(b)(1)(B)–which applies to calls to landlines.
For some reason I will never understand the RNCC screwed up and had the Court examine whether SMS messages are calls under both sections.
Now why in the world would they do that? That doesn’t even make sense,
Yet the Court took their bait and did so and concluded SMS messages were, indeed, calls under both sections. (Again– even though SMS can’t be sent to a landline.)
So why does this matter? I mean if 227(b)(1)(B) only applies to landlines who cares?
Well 227(b)(1)(B) uses the phrase “telephone call”– 227(b)(1)(A) does not. And “telephone call” is the exact phrase under examination in 227(c)(5)– the DNC cases that have been shut down all over the nation.
By inviting the Ninth Circuit to needlessly review 227(b)(1)(A) in Howard the Republicans inadvertently expanded the negative outcome in a 227(b) case to 227(c) cases throughout the circuit.
So dumb. Reckless really.
Hence, although the Howard court did not actually look at the issue directly we can expect many district courts throughout California and other western states to continue doing what the Combs decision did and holding “the same term is presumed to bear the same meaning throughout a statute.” Booo.
Anyway good to be back in the saddle. Do you have your LCOC V tickets yet? Prices rise in a couple of hours!
Chat soon.