I. The Western District of Missouri Holds Text Messages Are Not Calls Under the TCPA
The United States District Court for the Western District of Missouri granted Defendant’s Motion to Dismiss, finding that text messages are not calls under 47 U.S.C. § 227(c).
Plaintiff Jennifer Rush filed a putative class action against Defendant Selectquote Insurance Services, Inc. Plaintiff alleged that her telephone number was registered on the National Do Not Call Registry when Defendant sent two text messages without her consent. Defendant moved to dismiss the complaint.
The Western District of Missouri held that Plaintiff failed to state a claim because “text messages” are not “telephone calls” under § 227(c)(5). The court stated that the ordinary and common meaning of the term “call” when the TCPA was enacted in 1991 did not include text messages. The court relied on the Seventh Circuit’s recent ruling in Steidinger v. Blackstone Medical Services that a telephone was “an instrument for reproducing sounds at a distance.” Because text messages do not reproduce sounds, the plain meaning of “telephone calls” excludes text messages.
The court relied on Loper Bright and McLaughlin to state that FCC regulations were not binding on the court. The court stated that Congress did not delegate authority to the FCC to define “telephone calls,” and thus the court is not bound by FCC regulations. The court also declined to rely on other sections of the TCPA.
Accordingly, the court held that Plaintiff failed to state a claim and granted Defendant’s Motion to Dismiss.
Rush v. Selectquote Ins. Servs., 2026 U.S. Dist. LEXIS 182934, 2026 WL 2495598 (W.D. Mo. July 30, 2026).
II. The Eastern District of New York Finds Feigned Consent Sufficient
The United States District Court for the Eastern District of New York granted Defendants’ Motion to Dismiss after determining that Plaintiff’s “play along” consent was sufficient to qualify as consent or permission under 47 U.S.C. § 227(c).
Plaintiff David Tom filed a putative class action against Defendants Delancey Street Group LLC and MJA Holdings, Inc., alleging that Defendants violated the TCPA by sending telemarketing messages to Plaintiff’s cell phone listed on the National Do Not Call Registry. Plaintiff initially responded “Yes” to the text messages Defendants sent asking Plaintiff if he would like more information. Plaintiff provided an email address and stated that he should be contacted via email only because he was about to board a plane. Defendants moved to dismiss Plaintiff’s action.
The Eastern District of New York found that Plaintiff failed to allege more than one non-consensual solicitation. Plaintiff argued that his initial “Yes” response was feigned interest in order to determine the identity of the alleged telemarketer. The court found Plaintiff’s decision to “play along” irrelevant in determining the existence of consent or permission under § 227(c). The court stated that “any reasonable person would interpret Plaintiff’s text as an expression of his temporary preference for e-mail over text due to the lack of in-flight cell service, not as a permanent revocation of his consent to receive text messages.” Plaintiff was found to have consented to receiving text messages and did not revoke that consent.
Accordingly, the court granted Defendants’ Motion to Dismiss.
Tom v. Delancey St. Grp. LLC, 2026 U.S. Dist. LEXIS 174627, 2026 WL 2255107 (E.D.N.Y. Aug. 5, 2026).
III. The Middle District of North Carolina Holds Text Messages Are Not Calls Under the TCPA
The United States District Court for the Middle District of North Carolina granted Defendant’s Motion to Dismiss, holding that the TCPA does not create a private cause of action based on unwanted text messages.
Plaintiff Shawn Card filed a putative class action against Defendant R.J. Reynolds Tobacco Holdings, Inc., alleging that his phone number was listed on the National Do Not Call Registry and that he received repeated telemarketing text messages to his cell phone. Defendant moved to dismiss.
The Middle District of North Carolina joined a growing number of courts in agreeing with the Seventh Circuit’s reasoning in Steidinger v. Blackstone Medical Services that 47 U.S.C. § 227(c)(5) does not include a private right of action for text messages. The court noted that Congress used broad language which explicitly encompassed text messages in other sections of the TCPA but not § 227(c), evidencing Congress’ intent for “telephone call” to be defined more narrowly.
The court declined to interpret “text message” as part of the definition of “telephone call,” pointing out the change in judicial deference to agency statutory interpretation post-McLaughlin.
Accordingly, the court granted Defendant’s Motion to Dismiss.
Card v. R.J. Reynolds Tobacco Holdings, Inc., 2026 U.S. Dist. LEXIS 201636, 2026 WL 2673068 (M.D.N.C. Sept. 3, 2026).
IV. The Southern District of Florida Holds “Residential Telephone Subscriber” Does Not Include Cell Phones
The United States District Court for the Southern District of Florida denied Plaintiff’s Motion for Default Judgment, finding that the plain meaning of the term “residential telephone subscriber” under 47 U.S.C. § 227(c) does not include cell phones.
Plaintiff Michael Anthony filed a putative class action against Defendant Brian Marketing Group alleging that Defendant sent unsolicited text messages to his cell phone. The Defendant failed to respond. The Clerk initially entered default against Defendant. Plaintiff then filed a Motion for Default Judgment.
The court denied Plaintiff’s Motion for Default Judgment and interpreted the term “residential telephone subscriber” according to its ordinary meaning and determined that it referred to “persons who possess home phones, or landlines.” The court noted that the TCPA did not include language which “would otherwise permit the FCC to stretch the definition of ‘residential telephone subscriber’ to accommodate technological innovation and prevalence[.]”
The court also looked to other sections of the TCPA, finding that distinct use of the terms “cellular” and “residential” throughout the statute evidenced Congressional intent to treat cell phones differently from residential phones. The court determined that Congress could have written § 227(c) to include cell phones, but intentionally chose more restrictive language.
Thus, the court held that Plaintiff’s claims regarding unsolicited text messages sent to his cell phone were not actionable. Accordingly, the court denied Plaintiff’s Motion for Default Judgment.
Anthony v. Brian Mktg. Grp., 2026 WL 2685650 (S.D. Fla. Sept. 11, 2026).
V. The District of Maryland Denies Class Certification Over Inadequate Class Representation Following Cell Phone Toss Into the Mississippi River
The United States District Court for the District of Maryland denied Plaintiff’s motion for class certification for lack of class ascertainability and because Plaintiff was found to be an inadequate class representative.
Plaintiff Michael Smith filed a putative class action against Defendant ExamWorks, LLC, alleging that Defendant violated 47 U.S.C. § 227(b) by issuing thousands of prerecorded telephone reminder messages. Plaintiff moved to certify the class. Defendant opposed.
The court first found that the class failed due to lack of ascertainability. The Plaintiff’s expert failed to account for the various methods in which a claimant would have provided their cell phone numbers. Thus, there was no feasible method to ascertain the claims aside from individual consideration.
The court additionally held that Plaintiff was an inadequate class representative. Plaintiff’s case was distinguishable from the larger class definition involving the non-provision of a cell phone number to Defendant. Plaintiff’s claims instead relied upon his assertion that he provided one phone number but was called by the Defendant on his other phone number. However, because Plaintiff “threw the cell phone on which he had received ExamWorks’s automated appointment reminders into the Mississippi River[,]” the court was faced with “unique evidentiary challenges.” Plaintiff’s claim was thus atypical of the class.
The court also found Plaintiff inadequate because he understood “next to nothing” and failed to “articulate even a basic understanding of his role as class representative.” Plaintiff’s claims also lacked commonality and predominance. Plaintiff argued that the overarching class question was whether consent to receive robocalls was given. The court relied on FCC interpretations treating consent under the TCPA as “more expansive than express consent to be robocalled.” Because class claims involved more than mere disclosure of a phone number to the Defendant, common questions did not predominate.
Thus, the court denied Plaintiff’s motion for class certification.
Smith v. ExamWorks, LLC, No. 8:21-cv-02746-PX (D. Md. Sept. 21, 2026).
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