Are Texts Still "Calls" Under the TCPA?
For decades, one of the foundational rules of TCPA compliance has been the simple, unwavering assumption that "texts are calls." This interpretation, stemming from a 2003 FCC Order, has been the bedrock of every compliant text marketing program and the source of countless multi-million dollar settlements.
Now, that bedrock is cracking. A series of new court decisions, emboldened by a recent Supreme Court ruling, are directly challenging this long-held assumption. For business leaders, this is a critical development to watch, but it requires a disciplined, strategic response, not a premature celebration.
The Legal Shift: How the Supreme Court Opened the Door
For years, courts simply deferred to the 2003 FCC Order, which stated the TCPA "encompasses both voice calls and text calls." The game changed with the Supreme Court's decision in McLaughlin v. McKesson. In that case, the Court effectively told district courts to stop rubber-stamping agency interpretations. It clarified that courts must "independently determine for itself whether the agency's interpretation of a statute is correct" using "ordinary principles of statutory interpretation."
This was a quiet earthquake. It gave district courts the explicit authority to question the FCC’s 20-year-old decree, and that is exactly what they have begun to do.
The New Rulings: Courts Begin to Question the Old Rule
Following McLaughlin, several district courts have taken a fresh look at the TCPA and come to a logical, common-sense conclusion: a "telephone call" and a "text message" are not the same thing.
In El Sayed v. Naturopathic Holistic Health, the Middle District of Florida recently held that a text message was not a "telephone call" for TCPA purposes. The court's reasoning was simple: "In common American English usage, a 'telephone call' and a 'text message' are separate and distinct forms of communication."
The court in El Sayed also pointed out that "the term 'text message' appears elsewhere in the TCPA... an appearance that confirms Congress understood the pertinent distinction and legislated mindful of the distinction."
This followed a similar finding in Davis v. CVS Pharmacy, where the Northern District of Florida noted that Congress’s use of the phrase "telephone call or message" in a neighboring provision showed that "Congress does not use the term 'telephone call' to encompass all 'messages'."
Your Strategic Takeaway: Don't Change Your Risk Assessment (Yet)
This is a promising trend. The reasoning in these cases is strong and provides a powerful new defensive argument. But does this mean you should change your entire compliance framework?
Absolutely not. It is still far too risky to build a business strategy on a handful of favorable, non-binding district court opinions. While this trend is encouraging, a different court in a different circuit could easily disagree, and the financial exposure for guessing wrong is catastrophic.
Here is your strategic blueprint:
Acknowledge the Trend: This is a significant development that your legal team should be tracking. These cases provide a new and compelling argument to raise in the event of litigation.
Maintain the Defensible Position: The "belt and suspenders" approach remains the only defensible strategy for a compliant business. You must continue to treat text messages as "calls" for all TCPA purposes, including consent and DNC scrubbing. There is very little business harm in continuing to do so, and the risk of not doing so is massive.
