For months, defendants in Pennsylvania and New Jersey who argued that a text message is not a “telephone call” have been getting the same answer from federal judges: nice try. That changed on October 29, 2026, when U.S. District Judge Jennifer P. Wilson of the Middle District of Pennsylvania threw out a do-not-call lawsuit over two text messages. As far as we can tell, she became the first district judge in the Third Circuit to hold that a text is not a call. The case is Bronstin v. Happy Cabbage Analytics, Inc., No. 1:25-CV-01083, 2026 WL 3257600 (M.D. Pa. Oct. 29, 2026).
The ruling stands out because of what came before it. Pero, Newell, and Cole in the Eastern District of Pennsylvania and Rubin and Owen-Brooks in the District of New Jersey all went the plaintiffs’ way, and so has every other district court decision we know of in the Third Circuit on this question. Bronstin is the first crack in that wall. It also lines up with the Seventh Circuit case of Steidinger v. Blackstone Medical Services, 182 F.4th 532 (7th Cir. 2026), the first federal appeals court to take up the issue, which held in July that texts are not calls under the do-not-call provision of the Telephone Consumer Protection Act. That provision, § 227(c)(5), lets consumers sue over do-not-call violations, but only if they received “telephone calls.” The whole fight is over whether a text counts.
The facts are simple. Asher Bronstin put his cell number on the National Do-Not-Call Registry in 2021. In March 2022, he got a text pushing cannabis products from a number registered to Happy Cabbage, a marketing company that runs text campaigns for cannabis businesses (yes, that’s really the name). He replied “STOP,” and says a second text arrived the following March from another Happy Cabbage number. Happy Cabbage told the court that its client, The Spot, wrote and sent the messages through its platform, and that it has no record of a STOP request. Bronstin sued on behalf of a putative class, and Happy Cabbage moved to dismiss.
Judge Wilson began with the statute itself (as every judge should in my opinion). The Federal Communications Commission has long treated texts as calls, but after the Supreme Court’s Loper Bright and McLaughlin decisions, judges are no longer bound to go along, so she asked how people would have understood the words in 1991, when Congress passed the law. Relying on the same dictionary definitions the Seventh Circuit used, she explained that a telephone was then an instrument for reproducing sounds at a distance, and a call was an attempt to get into communication by telephone. Put together, a “telephone call” meant communication by sound, and text messages, she noted, typically don’t make any.
That alone could have ended the case, the judge said. But with courts split across the country, she kept going and her analysis is very satisfying to read. She noted that the law defines a “telephone solicitation” as a telephone call or message, yet the right to sue in § 227(c)(5) covers only telephone calls, which told her Congress meant something different by each. When Congress amended another section of the law in 2018 to cover text messages and left this one untouched, she read the omission as deliberate. And she rejected the argument that Congress quietly adopted the FCC’s view by staying silent noting that if lawmakers believed texts were already calls, there would have been no reason to amend the other section at all.
She also took on arguments that plaintiffs in other cases have made. One is that because a neighboring section of the law covers texts, this one must too. Not so, Judge Wilson wrote. That neighboring section expressly covers pagers, which this one doesn’t, and it gives consumers a broader right to sue. She also pointed to the law’s fax provision, which shows that Congress in 1991 already pictured text-based messages traveling over phone lines and called them messages, not calls.
What sets Bronstin apart is that it takes on the cases plaintiffs in this circuit lean on most. Bronstin pointed to the Supreme Court’s Campbell-Ewald decision, the Ninth Circuit’s Satterfield, and the Third Circuit’s own Gager v. Dell Financial Services, 727 F.3d 265 (3d Cir. 2013). The judge said Campbell-Ewald only assumed texts were calls, as the Supreme Court later explained in Duguid, and that Satterfield and Gager both deferred to the FCC and both dealt with a different section of the law. In other words, they answered a different question, back when courts still asked the agency what the statute meant.
Plaintiffs also love a scoreboard. Pero, an Eastern District of Pennsylvania decision from June, noted that six federal appeals courts have said texts are calls. Judge Wilson pointed out that most of those decisions came before Loper Bright and McLaughlin, when courts deferred to the FCC, and she was not persuaded: “the mere number of decisions reaching that conclusion is not dispositive.” Nobody wins a legal argument by show of hands. And to the worry that a plain-text reading leaves consumers at the mercy of changing technology, she gave the same answer as the Seventh Circuit: if Congress wants texts covered, Congress can say so.
The contrast with Owen-Brooks v. Better Homes & Gardens Real Estate, LLC, 2026 WL 2455150 (D.N.J. Aug. 21, 2026), is hard to miss. The District of New Jersey went the other way back in August without ever mentioning Steidinger. Bronstin is built on it. Same circuit, same statute, very different homework. See my article below discussing Owen-Brooks and several deficiencies in its ruling, including its reliance on a Northern District of Illinois decision that is no longer good law after Steidinger.
Now for the caveats. One district court decision doesn’t bind another, and the Third Circuit has not yet decided the question since McLaughlin. But defense lawyers in Pennsylvania, New Jersey, and Delaware no longer have to rely only on out-of-circuit cases and hope the judge is feeling adventurous. There’s now an in-circuit decision that takes on Gager and Pero and explains why neither carries the day. Plaintiffs will likely call it an outlier. If so, it’s a crowded one given that the court’s own list of like-minded decisions includes courts in the Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits.
A few other rulings in the opinion are worth knowing. Happy Cabbage also lost its argument that Bronstin lacked standing to sue. It said his injury traced back to its client, The Spot, not to Happy Cabbage. Citing Davis v. Wells Fargo, 824 F.3d 333 (3d Cir. 2016), the court said that goes to whether Happy Cabbage is the right defendant, which is a merits question, not a standing one. Right argument, wrong costume. The court did not reach Happy Cabbage’s argument that Bronstin wasn’t a “residential telephone subscriber,” treated a second count as moot, and dismissed the case with prejudice, because two text messages can’t support a § 227(c)(5) claim and no amended complaint could change that.
The bottom line is that Bronstin gives the texts-are-not-calls argument its first district court win in the Third Circuit, and it earns it the hard way, by taking on Gager and Pero instead of pretending they don’t exist. Until the Third Circuit weighs in, expect this fight to keep going in Pennsylvania, New Jersey, and Delaware. The difference is that defendants now get to show up with Steidinger and a district judge in their own circuit who agrees with it. Plaintiffs’ lawyers had the circuit to themselves for a while but no more. Welcome to the party.
And let’s hope that this ruling empowers a district court judge in the Ninth Circuit to feel adventurous as well.
Talk to you soon TCPAWorld and as always, be safe.