By: Jeffrey Backman, Esq. and Roy Taub, Esq.
Courts continue to wrestle with a deceptively simple question under the Telephone Consumer Protection Act (TCPA): Are text messages “telephone calls”? A recent decision from the Middle District of Louisiana answers yes—and in doing so, it underscores a widening split over how to read the statute after the Supreme Court curtailed deference to agency interpretations.
In McGonigle v. Shopperschoice.com, L.L.C., the court denied a motion to dismiss a TCPA claim premised on unsolicited marketing text messages sent to a cell phone number listed on the National Do Not Call Registry. The defendant argued that Section 227(c)(5) covers only “telephone call[s]” and does not extend to texts and further contended that a cell phone is not a “residential telephone” under the subsection.
The court held that § 227(c)(5) applies to cell phone text messages, adopting the Southern District of Texas’s reasoning in Alvarez v. Fiesta Nissan, Inc. and conducting an interpretation independent of FCC guidance in light of Loper Bright and McLaughlin. Relying on ordinary-meaning analysis at the time of enactment (1991), the decision noted that “call” meant “to get or try to get into communication by telephone,” and reasoned that the statute’s general terms can embrace later technological innovations like texting. The court also emphasized statutory context: § 227(c) broadly targets “telephone solicitations,” and Congress has elsewhere ratified the understanding that “telephone call” under § 227(b) includes texts, which strongly informs the identical language in § 227(c).
Addressing the “residential” element, the court concluded that cellular users could qualify as “residential telephone subscribers” under § 227(c), aligning with multiple district courts post-Loper. The plaintiff’s allegations—that he is the sole user of the number, uses it as his only number for personal and household purposes akin to a home landline, and does not use it for business—were sufficient at the pleadings stage. The requirement of these allegations to satisfy the “residential” element should make class certification an obstacle.
The Broader Landscape: A Split That Matters
The court acknowledged a growing division among district courts over whether § 227(c)(5) encompasses text messages post-Loper, citing decisions that go “both ways,” including Alvarez and Wilson finding coverage and Davis and Jones rejecting it.
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