For decades, federal courts relied on interpretative guidance from the Federal Communications Commission (FCC) to allow plaintiffs to sue under the Telephone Consumer Protection Act’s (TCPA) Do-Not-Call provisions for unauthorized text messages. However, since the U.S. Supreme Court eliminated this type of judicial deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), federal courts have increasingly reconsidered whether text messages qualify as actionable violations of the TCPA’s Do-Not-Call provisions.
Several courts have concluded that they do not, at least in certain circumstances. For defendants facing TCPA lawsuits based on text messages, this interpretation may support an early motion to dismiss, depending on the jurisdiction.
Federal Courts Disagree on Whether the TCPA’s Do-Not-Call Provisions Cover Text Messages
The U.S. Court of Appeals for the Seventh Circuit is the most prominent federal appellate court to address whether plaintiffs can sue under the TCPA’s Do-Not-Call provisions for text messages.
On July 14, 2026, the Seventh Circuit decided Steidinger v. Blackstone Medical Services, 182 F.4th 532 (7th Cir. 2026). It became the first federal court of appeals to squarely hold that Section 227(c)(5) of the TCPA does not cover text messages. The provision authorizes lawsuits by individuals who receive “more than one telephone call” within 12 months in violation of the Do-Not-Call regulations.
Applying the statute’s ordinary public meaning in 1991, when Congress enacted it, the court reasoned that a “telephone call” referred to communication by sound. The court also noted that the first text message was not sent until 1992.
The Steidinger decision binds federal district courts in Illinois, Indiana, and Wisconsin. Several other district courts have also dismissed claims under Section 227(c)(5) based on text messages, including courts in Florida, Georgia, Alabama, Ohio, Missouri, Colorado, and Virginia. However, federal courts have not reached a consensus.
In Howard v. Republican National Committee, 164 F.4th 1119 (9th Cir. 2026), the Ninth Circuit held that a text message qualifies as a “call” under the TCPA, even after Loper Bright. The decision now binds federal district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.
Some courts in other jurisdictions, including in New Jersey and New York, have also held that Section 227(c)(5) covers text messages.
What the TCPA Circuit Split Means for Defendants
The disagreement between the Seventh and Ninth Circuits creates a circuit split that could expand as other appellate courts consider pending appeals and interlocutory certifications. Given the volume of TCPA class-action litigation and the statutory damages at stake, the question may ultimately reach the U.S. Supreme Court.
Until then, the availability of this defense will depend largely on where a defendant is sued. Businesses facing TCPA claims based on text messages should consider the following steps:
- Review the statutory basis for each claim. Determine whether the plaintiff relies on Section 227(c)(5), the TCPA’s private right of action for violations of the Do-Not-Call regulations.
- Evaluate an early motion to dismiss. Outside the Ninth Circuit, defendants should consider relying on Steidinger and other decisions dismissing text-based claims under Section 227(c)(5).
- Preserve the argument for further review. In the Ninth Circuit, where Howard controls, defendants may wish to preserve the issue for potential further appellate review.
- Consider an interlocutory appeal. If a court rejects the defense, defendants may consider seeking certification under 28 U.S.C. Section 1292(b), which permits certain interlocutory appeals. Several courts have found the issue appropriate for this type of review.
- Assess potential state law claims. State laws, including the Florida Telephone Solicitation Act, may expressly cover text messages and could remain applicable even if a federal TCPA claim is dismissed.
The evolving case law creates a potentially significant defense against certain TCPA claims involving text messages. Businesses facing these lawsuits should assess the applicable law in their jurisdiction and evaluate whether an early challenge to the plaintiff’s claims is warranted. Varnum’s litigation attorneys can help businesses evaluate these developing legal issues and assess potential strategies for challenging TCPA claims.
