[author: Eric Troutman]
Those of you who attended Law Conference of Champions III last week heard from the Czar on the critical impact of the Supreme Court’s recent decision in McKesson.
That SCOTUS ruling through out Hobbs act deference requirements to FCC TCPA orders and allowed courts to decide for themselves what the provisions of the TCPA mean.
As I predicted from the stage– chaos will follow. And among the FIRST chaotic changes I expected was some courts to treat SMS messages as effectively TCPA exempt.
Well it just happened.
In Jones, et al. v. Blackstone, 2025 WL 2042764 (C.D. Ill. July 21, 2025) a court tossed a TCPA DNC claim against the defendant finding that SMS messages simply are not covered by the statute’s DNC provisions.
Here is the meat of the Court’s analysis:
Under the principles of statutory interpretation, a court must start with the text of the statute to ascertain its plain meaning. U.S. v. Melvin, 948 F.3d 848, 851 (7th Cir. 2020)… Section 227(c)(5) simultaneously explicitly refers to a “telephone call”, a term not defined in the statute itself, and remains silent as to its application to text messages. Text messaging was not an available technology in 1991, and thus “telephone call” would not have included text messages or SMS messages… Moreover, in today’s American parlance, “telephone call” means something entirely different from “text message”. Thus, under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages…
The Court understands the FCC has a level of expertise as to the various forms of communication existing at the time of the TCPA’s enactment as well as now. See Loper Bright, 603 U.S. at 402 (“[An agency’s] expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’ ”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While the Court affords a certain amount of respect to the FCC’s interpretation of the terms used in the TCPA, the fact remains that Section 227(c)(5) of the TCPA includes “telephone call” and does not mention text messages or SMS messages, and nowhere does the TCPA define “telephone call” to include text and/or SMS messages. As illustrated above, the FCC’s interpretation of call to include text messages is a complicated one, and potentially does not even apply to Section 227(c)(5).
Wow. And Booyah.
As I said, let the chaos begin.
The Court’s simple “ordinary meaning” analysis will be attractive to many courts. But even the Jones court agreed it was “imminently reasonable” to apply the TCPA’s DNC rules to SMS messages– so MANY courts will.
Indeed the Jones court essentially afforded zero deference to the FCC’s rulings– doubtful that many courts will be so disrespectful to Commission handiwork on the subject. (Even after McKesson courts are supposed to afford some respect to the FCC– who knows what that means though.)
So there you go. Chaos. Madness. TCPA style.
Fun. But also, not so fun.
Take aways:
- TCPA defendants being sued in SMS DNC cases should IMMEDIATELY look to dismiss these cases;
- In my view, companies SHOULD NOT change their practices in reliance on this ruling, however, as it is a single district court decision and will NOT be followed uniformly across the nation.
Hang in there TCPAWorld.
While we’re chatting be sure to request a copy of the TOTALLY FREE Troutman Amin, LLP TCPA Annual Review (2025 Ed.), presented by Contact Center Compliance.
Totally free. Just ask!
WE DID IT!: WE UPDATED OUT 2025 TCPA ANNUAL REVIEW AND YOU SIMPLY MUST HAVE ONE RIGHT NOW!
All right folks, we did it! As soon as news broke that the FCC’s new one-to-one rule was not going into effect we here at Troutman Amin, LLP got to work! We updated our famous 2025 TCPA Annual review, presented by Contact Center Compliance to clarify that one-to-one was not in effect and provided the … Continue reading
Chat soon.
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