Reflecting on Nearly Twenty Years of Telephone Consumer Protection Act Practice and the Current State of Affairs
Everyone loves to celebrate anniversaries! My 20-year anniversary of helping clients navigate the complex and draconian federal statute known as the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, is rapidly approaching. For those new to the TCPA, it regulates, among other things, informational or marketing calls depending on the technology used to make the call and whether a wireline or wireless/mobile phone was called, sales calls to a telephone number on a do-not call list, and, if consent is needed to place the call, whether the company had the proper consent. The TCPA is full of these and other “landmines,” and businesses need skilled and experienced counsel to navigate it!
Over those nearly 20 years, I’ve seen a lot of changes to how regulators, courts, consumer lawyers, and the defense bar navigate the TCPA. When I first started handling TCPA issues, the statute was not well known by the plaintiffs’ bar or many defense/compliance attorneys. As it grew in popularity with the plaintiffs’ bar, lawsuits increased, class action settlements in the seven and eight-figures were the “new normal,” and conflicting court opinions across the country on significant issues made both operationalizing call centers and compliance quite difficult.
These challenges led to many different factions seeking refuge and relief from the primary federal regulatory agency charged with enabling and enforcing the TCPA, the Federal Communications Commission (FCC). The hope was two-fold. First, that the FCC would issue clear and unambiguous declaratory rulings providing the necessary clarity and uniformity so everyone knew what was allowed and disallowed. Second, that courts would follow long-standing precedent and defer to the FCC’s interpretation of the TCPA in lawsuits that alleged a violation of the TCPA that was at odds with an FCC ruling. Although the FCC delivered some clarity in its rulings and courts initially deferred to the FCC, the FCC’s rulings created new confusion, especially regarding the meaning of an “automatic telephone dialing system” (ATDS), a defined term in the TCPA.
This additional confusion led to a new era of the TCPA in the late 2010s/early 2020s, where litigants sought clarity and uniformity by taking cases up on appeal in various federal circuit courts, and then to the United States Supreme Court. That, of course, led to more divergent opinions from the federal appellate courts on substantive issues, such as the meaning of an ATDS and what, if any, deference the courts should afford to the FCC. The TCPA, which was relatively unknown in the early 2000s, has now become so widely known that the Supreme Court, which takes very few cases, has decided multiple TCPA cases within the last five years.
In this blog post from June, I discussed how the United States Supreme Court’s decision in McLaughlin Chiropractic Associates v. McKesson Corporation would likely lead to a fractured landscape of divergent lower court rulings about the scope and application of the TCPA. In that case, the Court ruled that district courts were not bound by the FCC’s conclusion that the TCPA’s prohibition on unsolicited telephone fax advertisements did not apply to online fax services. Instead, per the Court’s direction, district courts must now independently determine the law’s meaning under ordinary principles of statutory interpretation while affording “appropriate respect” (whatever that means) to the agency’s interpretation.
Not that I am Nostradamus, but the prediction of muddied judicial waters regarding the TCPA has quickly come to pass.
Since McLaughlin, several cases have addressed the TCPA’s “Do Not Call” (DNC) protections and whether they apply to text messages. Before the Supreme Court essentially told district court judges to do their own thing, these cases would have likely been quickly and uniformly disposed of, with judges deferring to the FCC’s established position on these matters that texts are “calls” for DNC purposes. That is no longer the case.
Opposing TCPA Rulings as To Text Messages Issued on the Same Day
This new reality was dramatically illustrated when two TCPA decisions reaching opposite conclusions were issued on the same day.
On July 21, 2025, the Central District of Illinois ruled that text messages did not trigger TCPA claims premised on alleged violations of the law’s DNC provisions (47 U.S.C. § 227(c)). In Jones v. Blackstone Medical Services, LLC, No. 24-cv-01074, 2025 U.S. Dist. LEXIS 138371, at *3-4 (C.D. Ill. July 21, 2025), the court held that because “telephone call” was not defined in the TCPA, it should rely on the term’s ordinary and common meaning per the Supreme Court’s direction in McLaughlin. It concluded that “[I]n 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 plaintiff has since appealed the decision to the Seventh Circuit.
Two thousand miles to the west, the District of Oregon issued a contrary July 21, 2025, decision on the same issue. In Wilson v. Skopos, 2025 WL 2029274 (D. Or. July 21, 2025), the court refused to dismiss a TCPA DNC claim based on text messages, holding that SMS messages are telephone calls subject to the TCPA’s DNC rules. “It cannot be argued in good faith that text messages are so categorially different from phone calls that the former cannot be considered an invasion of consumer privacy when directed at numbers on the DNC Registry,” the court wrote in its order denying the defendant’s motion to dismiss.
A month after those two competing rulings came down, yet another district court weighed in on the text message issue, agreeing with the Central District of Illinois’ position that texts are not “telephone calls” under the TCPA. “[N]o ordinary person would think of a text message as a ‘telephone call.’ This conclusion —supported by the ordinary public meaning at the time of the provision’s enactment—is enough to end this case,” wrote the Northern District of Florida in Davis v. CVS Pharmacy, Inc. 2025 WL 2491195 (N.D. Fl. Aug. 26, 2025).
More Confusion Likely, at Least for Now
Undoubtedly, these three decisions are far from the last word on the texts-as-calls issue. Equally assured are contradictory rulings on other TCPA matters, such as whether personal cell phones are “residential” lines subject to DNC protections. The Supreme Court’s McLaughlin decision has ushered in a new, fraught-with-peril era for TCPA claims and defenses, one that makes it even more essential that companies have experienced, creative TCPA counsel in their corner to engage in proactive risk management and craft the proper litigation strategies and arguments to seek dismissal when the inevitable TCPA suit is filed.
As noted in my prior post, given the as-yet unsettled TCPA landscape, now is the time to review your company’s outbound calling/texting policies and procedures (and those of your vendor if you use one) with the proper counsel to ensure they align with your company’s “risk appetite”.
If you have any questions about these decisions or the TCPA generally, please contact Robert Horwitz at Maddin Hauser.