By: Jeffrey Backman, Esq. and Roy Taub, Esq.
A new decision from the Northern District of Georgia squarely rejects the view that text messages are subject to the TCPA’s DNC provisions, holding that Section 227(c)(5)’s private right of action reaches only “telephone calls,” not text messages.
In Irvin v. Sonic Industries Services, LLC, the plaintiff registered his personal number on the National Do Not Call Registry in February 2025 but alleged he nonetheless received at least twelve telemarketing text messages from August to October 2025, each bearing Sonic’s branding and links. He brought a putative class action under Section 227(c), asserting a DNC-based claim tied to those texts. On April 20, 2026, the district court granted Sonic’s motion to dismiss, holding that Section 227(c)(5) does not apply to text messages.
The court framed the threshold question under the statute’s plain text: Section 227(c)(5) creates a private right of action for persons who “received more than one telephone call” in violation of the DNC rules, and a text message is not a “telephone call”. In reaching that conclusion, the court aligned with recent Eleventh Circuit district court decisions that likewise read “telephone call” in 227(c)(5) to exclude text messages.
The court emphasized that, after the Supreme Court’s decision in McLaughlin Chiropractic v. McKesson, district courts are not bound to defer to the FCC’s interpretation of the TCPA and must apply ordinary statutory interpretation without Hobbs Act constraints. Because prior authorities treating texts as “calls” largely deferred to the FCC’s 2003 order (under Section 227(b)), or assumed the issue without deciding it, they did not control the analysis under Section 227(c) post-McLaughlin.
The court underscored Congress’s use of different terms in different TCPA subsections, “telephone call” versus “telephone call or message,” as evidence that “call” alone should not be read to include text messages in 227(c)(5). The court also rejected the argument that Section 227(c)(1) and the definition of “telephone solicitation” compel a broader reading, noting that adopting the same scope would render statutory distinctions superfluous.
Plaintiff’s fallback, that Congress expressly delegated to the FCC authority to regulate DNC practices broadly enough to encompass texts, failed because Section 227(c) contains no explicit delegation to define “telephone call,” and using general rulemaking authority to expand “call” to include SMS would improperly enlarge the private right of action. Accordingly, the court reviewed the issue de novo and declined to treat the FCC’s view as controlling or entitled to more than respectful consideration.
