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This article was originally published on New York Law Journal, February 2026.
Recent Supreme Court rulings mean courts now interpret the TCPA without FCC guidance, leading to conflicting decisions on whether text messages are considered “calls.” Some courts say no; others say yes, creating legal uncertainty and uneven compliance risks for businesses nationwide. The authors discuss How Loper Bright and McLaughlin are reshaping Telephone Consumer Protection Act litigation, statutory interpretation, and compliance risk.
For decades, courts, regulators, and businesses largely operated under a stable assumption about the Telephone Consumer Protection Act (TCPA). If a company sent unsolicited text messages to a consumer whose number was on the National Do Not Call (DNC) Registry, those messages could expose the sender to liability under the statute’s Do Not Call provisions. That assumption rested not on the statute’s text, but on Federal Communications Commission (FCC) interpretations that treated text messages as the functional equivalent of telephone calls.
That stability is now gone.
In the wake of the Supreme Court’s decisions in Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), and McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025), district courts are no longer required to defer to the FCC’s interpretations when deciding civil TCPA cases. Instead, they must decide for themselves what the statute means, using ordinary principles of statutory interpretation. Once courts began doing that, a fundamental question moved from the background to the foreground: when Congress prohibited certain “telephone calls” in 1991, did it also prohibit text messages that did not yet exist?
Courts are now answering that question in sharply different ways. The result is a growing and consequential split that has immediate implications for pleading standards, motion practice, settlement valuation, and compliance planning. The same conduct that may be dismissed at the pleading stage in one jurisdiction may proceed into expensive discovery and class certification battles in another.
The statutory provision at issue is Section 227(c)(5) of the TCPA, 47 U.S.C. §227(c)(5). It creates a private right of action for any person whose number is registered on the National Do Not Call Registry and who “has received more than one telephone call within any 12-month period by or on behalf of the same entity” without consent or a qualifying business relationship. When Congress enacted this provision in 1991, SMS text messaging did not exist.
Rather than amending the statute as technology evolved, Congress left the text unchanged. In the meantime, the FCC issued regulatory guidance stating that text messages should be treated as calls for certain TCPA purposes. For many years, courts largely treated that guidance as effectively controlling.
That framework has now been dismantled. In Loper Bright, the Supreme Court eliminated Chevron deference. In McLaughlin, the court held that district courts in TCPA enforcement actions are not bound by agency interpretations and must independently determine the meaning of the statute, giving agency views only such respect as their reasoning warrants. McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 155–56 (2025).
Once that shift occurred, defendants began arguing that the words “telephone call” should be given their ordinary meaning as of 1991, and that text messages therefore fall outside Section 227(c)(5). Several courts have accepted that argument. In Jones v. Blackstone Med. Servs., LLC, 792 F. Supp. 3d 894 (C.D. Ill. 2025), the court held that text messages are not telephone calls for purposes of the Do Not Call provision. The court focused on the ordinary public meaning of the statutory language at the time of enactment and reasoned that Congress could not have intended to regulate a technology that did not yet exist. The court also emphasized that Congress had amended other portions of the TCPA without amending Section 227(c)(5), which it viewed as confirming that the provision’s scope had not been expanded by statute.
Courts in Florida soon followed. In Davis v. CVS Pharmacy, Inc., No. 3:25-cv-231, 2025 WL 2491195, at *1 (N.D. Fla. Aug. 26, 2025), the court concluded that “no ordinary person would think of a text message as a ‘telephone call,’” and held that the statutory text, read according to its original public meaning, foreclosed the claim. In Sayed v. Naturopathica Holistic Health, Inc., No. 1:25-cv-214, 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025), the court adopted the same reasoning, emphasizing that “the statutory text here is clear” and that the omission of any reference to text messages confirms that Section 227(c)(5) applies only to actual calls.
Other courts, however, have gone the other way.
In Wilson v. Skopos Fin., LLC, No. 3:25-cv-812, 2025 WL 2029274 (D. Or. July 21, 2025), the court rejected the argument that texts fall outside the statute and reasoned that the TCPA’s purpose of protecting consumer privacy would be undermined by excluding a now-dominant form of telephonic communication. The court also relied on the FCC’s longstanding guidance and the overall structure of the statute.
A court in California reached a similar result in Wilson v. Medvidi, Inc., No. 5:25-cv-1441, 2025 WL 2856295 (N.D. Cal. Oct. 7, 2025), concluding that nothing in the text, structure, or purpose of the TCPA supports a rigid distinction between written and oral communications.
Most notably for New York practitioners, the Southern District of New York adopted this approach in Wilson v. Better Mortg. Corp., No. 1:25-cv-9173, 2025 WL 3493815 (S.D.N.Y. Dec. 5, 2025). There, the court reasoned that a “telephone call” in 1991 was best understood as a communication made by phone, and that text messages, which are sent and received by phone, fall within that concept. The court drew support from Mujahid v. Newity, LLC, No. 25 C 8012, 2025 WL 3140725 (N.D. Ill. Nov. 10, 2025), which relied on dictionary definitions and the structure of the TCPA as a whole.
For litigants, this uncertainty has immediate procedural consequences. In jurisdictions following Jones, Davis, and Sayed, defendants have a powerful threshold argument that can dispose of Do Not Call claims at the motion to dismiss stage. In jurisdictions following Skopos, Medvidi, and Better Mortgage, the same argument is likely to fail, and the case will proceed into discovery.
That divergence also complicates class action risk assessment. A nationwide texting campaign that might generate little exposure in one set of jurisdictions could produce substantial liability in another. Forum selection, removal strategy, and early motion practice now matter more than ever.
For businesses and insurers, the compliance implications are equally significant. It would be a mistake to assume that these decisions reduce TCPA risk in any uniform way. If anything, they make the risk more uneven and harder to model. Companies that operate nationally cannot safely tailor their practices to the most permissive jurisdictions, because plaintiffs will continue to file in forums that take the broader view. Insurers, in turn, will have to evaluate TCPA exposure with greater attention to venue, pleading theories, and circuit-level trends.
In this environment, conservative compliance planning remains the only rational course. That includes continuing to treat text messages as fully regulated under the TCPA, maintaining rigorous consent documentation, and closely monitoring Do Not Call compliance and reassigned number protocols.
At the same time, defense counsel should be reevaluating early motion strategies. In the right jurisdictions, the statutory argument that texts are not calls may be dispositive. In others, it may still serve to frame the case, preserve issues for appeal, or influence settlement posture.
More broadly, these cases reflect a deeper shift in the legal landscape. After Loper Bright and McLaughlin, regulated industries can no longer assume that agency interpretations will stabilize statutory meaning. The meaning of a statute may now vary by jurisdiction and even by district.
Eventually, Congress or the Supreme Court may resolve this question. Until then, the TCPA’s Do Not Call provision will remain a moving target. In a post-Chevron world, statutory text, not regulatory gloss, is once again the battleground. For businesses, insurers, and litigators alike, that means more forum dependence, more front-loaded risk analysis, and more uncertainty than the TCPA landscape has seen in decades.
Insurance and reinsurance
United States