Key Points

• A federal appeals court has held that texts are not "calls" under the TCPA's Do-Not-Call private right of action.
• The 7th Circuit ruling creates a circuit split because it conflicts with the 9th Circuit's broader reading of the TCPA, increasing the likelihood that the issue will be taken up by the U.S. Supreme Court.
• Businesses should not reduce text-messaging compliance despite the favorable ruling. Section 227(b)'s autodialer restrictions still cover texts.
• FCC enforcement authority is unaffected, and state mini-TCPA statutes provide independent liability regardless of how the federal split resolves.

A Textualist Approach

For the first time, a federal appellate court has held that text messages are not “telephone calls” under the private right of action created by Section 227(c)(5) of the Telephone Consumer Protection Act (TCPA).

The decision of the 7th U.S. Circuit Court of Appeals in Steidinger v. Blackstone Medical Services, sets up a direct conflict with the 9th Circuit, all but guaranteeing that the U.S. Supreme Court will eventually have to sort out how far the statute’s Do-Not-Call protections extend to text messaging.

Writing for a unanimous three-judge panel, U.S. Circuit Judge Thomas Kirsch took a textualist approach, holding that the term “call” under Section 227(c)(5) means a communication made by sound, consistent with what “telephone call” meant to the public when Congress passed the TCPA in 1991. Texts don’t make noise, so they don’t qualify.

Judge Kirsch’s decision offers a clean, logical reading of the statute — and one that gives defendants in Do-Not-Call text-messaging cases a real argument for dismissal that didn’t exist at the appellate level before now.

The Legal Landscape

The split traces back to the U.S. Supreme Court’s June 2025 decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), which held that district courts are not bound by the FCC’s interpretations of the TCPA.

Before McLaughlin, courts routinely deferred to the FCC’s 2003 order and 2024 decision to extend National Do-Not Call Registry protections to text messages, and the question of whether texts trigger Do-Not-Call liability rarely arose in a serious way. Once that deference disappeared, district courts were left to interpret the statutory text for themselves — and they have not agreed.

By one count, roughly 18 post-McLaughlin decisions have held that text messages are “calls” under Section 227(c)(5), while about 11 have gone the other way. Steidinger is the first appellate court to weigh in, and it broke with the majority trend among the district courts.

The Do-Not-Call Registry

Section 227(c)(5) gives consumers a private right of action — and statutory damages of $500 per violation — against callers who place “more than one telephone call within any 12-month period” to a number on the National Do-Not-Call Registry, or otherwise in violation of the FCC’s Do-Not-Call rules. Because the provision does not itself define “telephone call,” whether a text message qualifies has become the pivotal, and now contested, threshold question in a large volume of TCPA text-messaging litigation.

The Steidinger court supported its textualist reading with two additional observations.

First, it invoked the meaningful-variation canon: elsewhere in the TCPA, Congress defined “telephone solicitation” to include a “telephone call or message,” but used only “telephone call” in Section 227(c)(5). The panel read that word choice as deliberate — Congress knew how to reach text messages when it wanted to and chose not to do so in the Do-Not-Call private right of action.

Second, the court pointed to Congress’s 2018 amendment of Section 227(e), which expressly addresses text messages in a different part of the statute, without making any corresponding change to Section 227(c)(5). In the panel’s view, that legislative choice reinforced the conclusion that Congress did not intend the Do-Not-Call provision to sweep in texts.

This creates a conflict with the 9th Circuit’s decision in Howard v. Republican National Committee, No. 23-3826 (9th Cir. Jan. 13, 2026).

In Howard — which involved Section 227(b) and the use of autodialers and prerecorded voices — the 9th Circuit interpreted “call” more broadly as any attempt to communicate by telephone, which includes texting.

The Howard decision also leaned on the policy rationale that texts cause the same kind of intrusion on privacy that the Do-Not-Call rules were meant to prevent. Notably, the 9th Circuit grounded its holding in statutory text rather than FCC deference, so McLaughlin didn’t undercut it. But the 7th Circuit clearly disagrees with that reading, and now we have a split that the Supreme Court will eventually have to resolve.

The 3rd Circuit has not yet ruled on this precise question at the appellate level, leaving businesses in Pennsylvania, New Jersey and Delaware without binding guidance.

District courts within the 3rd Circuit have split. In Catherine Pero v. Brown-Daub Chevrolet of Nazareth (E.D. Pa. June 17, 2026), the Eastern District of Pennsylvania held that text messages are “telephone calls” under the Do-Not-Call provisions, reasoning that the TCPA’s definition of “telephone solicitation” as a “telephone call or message” signals that Congress intended to regulate more than voice communications, and that a text is simply a “message” delivered over a telephone. The court also noted that other post-McLaughlin decisions within the Third Circuit have likewise read Section 227(c) to encompass text messages.

That said, the 3rd Circuit has taken a notably narrow approach to other TCPA questions — for example, in its restrictive reading of the autodialer definition in Dominguez v. Yahoo and the Perrong line of cases — so it would be a mistake to assume the court of appeals will necessarily follow the more expansive district-court trend once it does take up the issue.

A further appeal is now pending before the 11th Circuit in Radvansky v. Kendo Holdings, No. 26-10837 (11th Cir.), and it is expected that the Supreme Court will eventually grant certiorari given the now-direct conflict between the 7th and 9th Circuits on a recurring question that affects the viability of a large share of pending TCPA text-messaging suits.

Practical Takeaways for Businesses

Steidinger is a significant but narrow win for defendants.
The 7th Circuit became the first federal court of appeals in the country to squarely hold that Section 227(c)(5)’s private right of action does not reach unwanted text messages. That holding is binding only in states within the 7th Circuit (Illinois, Indiana and Wisconsin) and does not extend protection to companies operating, or facing suit, elsewhere.

District courts are deeply divided.
The 11th Circuit currently has its own appeal pending in Radvansky v. Kendo Holdings, and if that court affirms the district courts’ “texts are not calls” trend, businesses will have the advantage of two courts of appeals in agreement; if it reverses, a genuine appellate conflict will exist that materially raises the odds of Supreme Court review.

Business should maintain text messaging compliance programs.
Regardless of how the Section 227(c)(5) split resolves, Section 227(b)’s restrictions on autodialed and prerecorded-voice communications remain in force and are not disturbed by Steidinger. The panel itself acknowledged that its own prior precedent, along with decisions from other circuits, treats text messages as “calls” for purposes of Section 227(b) — a different provision than the one at issue in Steidinger. The decision in Howard reinforces this point, holding that text messages are “calls” under the TCPA generally, independent of any FCC deference question. Companies should not read Steidinger as a general “texts are unregulated” holding.

The FCC’s own regulatory and enforcement authority is unaffected.
The FCC’s 2024 rule codifying that Do-Not-Call protections extend to text messages remains enforceable, and while courts are no longer required to defer to that interpretation in private litigation, the FCC retains its own enforcement powers under Section 227(c). Businesses should not assume that a favorable circuit ruling forecloses agency-driven exposure.

Forum selection remains a live and material risk.
Plaintiffs’ firms are actively filing in venues perceived as favorable, and the same SMS campaign can be dismissed at the pleading stage in one district and proceed to costly class discovery in another. State “mini-TCPA” statutes provide an independent and growing avenue of liability that operates regardless of how the federal circuit split develops. Companies with a national footprint should not tailor compliance to the most permissive jurisdictions, because plaintiffs will continue to seek out forums applying the broader reading of Section 227(c)(5). Well-drafted, enforceable consent language and forum-selection or arbitration clauses in terms of service can help mitigate this risk.

The conservative approach remains the safer course.
Until the U.S. Supreme Court resolves this issue, any company running text campaigns on a national scale should continue scrubbing against the National Do-Not-Call Registry and internal do-not-call lists, obtain and document the appropriate tier of consent for marketing texts, honor “STOP” and other opt-out requests across all systems and personnel, observe quiet-hours restrictions, and maintain these practices irrespective of favorable rulings in any single circuit.

For more information, contact Lauren McGinley at 215.918.3595 or lmcginley@foxrothschild.com or Corey M. Scher at 215.444.7269 or cscher@foxrothschild.com or another member of Fox Rothschild’s national Litigation Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.