By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In a recent opinion denying a Rule 12(b)(6) motion, the District of New Jersey held that text messages qualify as “telephone calls” under § 227(c) of the TCPA, even after Loper Bright eliminated Chevron deference. The court began with statutory text and ordinary meaning at enactment in 1991, reasoning that a “telephone call” is a communication made by telephone without limiting it to voice, and that modern modes of telephonic communication, including SMS messages, fit comfortably within that understanding.
The court then considered statutory context and symmetry. It emphasized that courts and the Supreme Court recognize texts as “calls” under § 227(b), and identical terms in the same statute should carry the same meaning absent contrary indication. That parallelism and the TCPA’s privacy-protective purpose, according to the court, supported applying § 227(c) to texts. The court read “call” consistently across § 227(b) and § 227(c), and found nothing in the statute suggesting Congress intended fewer covered modes in § 227(c). The court further reasoned that including texts aligns with the TCPA’s purpose to protect subscribers from telephone solicitations and invasions of privacy.
Defendants argued that, with Chevron deference abrogated, the FCC’s view that texts are “calls” cannot control and that independent interpretation should exclude texts from § 227(c). The court agreed that deference is not binding but held that independent textual and structural analysis leads to the same outcome, noting numerous post–Loper Bright decisions doing likewise. This opinion reflects an approach that treats the FCC’s prior position as persuasive context while resting the holding on statutory text, structure, and purpose—not deference. The court stated that while it was “not bound by nor deferential to the FCC’s interpretation,” that interpretation was supported by the statute’s text and purpose and the reasoning of numerous courts.
There is an acknowledged debate; the opinion flags the competing defense view but resolves the question by textual analysis rather than agency deference. Post–Loper Bright, practitioners should expect courts to resolve the question on principles of statutory interpretation and continue to expect mixed results.
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