By: Jeffrey Backman, Esq., Roy Taub, Esq., and Jacob Mars, Esq.
Businesses that rely on text-message marketing face a growing uncertainty: can a text message support a private do-not-call claim under 47 U.S.C. § 227(c)(5)? That answer now more than ever depends on where the lawsuit is filed. Two federal courts issued decisions one day apart reaching opposite conclusions at the motion to dismiss stage, sharpening a live split over whether a text is a “telephone call” for purposes of the TCPA’s do-not-call private right of action.
The District of Colorado: Texts Are Not “Telephone Calls” Under § 227(c)(5)
On September 23, 2026, in Radvansky v. 1st Class Medical, the District of Colorado granted a Rule 12(b)(6) motion and dismissed a § 227(c)(5) claim with prejudice where the plaintiff alleged receipt of multiple marketing texts despite DNC registration. Adopting the Seventh Circuit’s reasoning in Steidinger v. Blackstone Medical Services, the court held that “telephone call” in § 227(c)(5) does not encompass text messages, relying on contemporaneous dictionary definitions from 1991 that linked “telephone” and “call” to voice communication and concluding that texts, which do not reproduce sound, fall outside the term.
The court also based its decision on the structure of § 227(c): Congress used “telephone call” in § 227(c)(5) but “telephone solicitation” and “telephone call or message” in neighboring provisions, indicating a narrower private remedy limited to calls, not all solicitations or messages. As for the FCC guidance to the contrary that the plaintiff relied upon, the court found FCC interpretations extending DNC protections to text messages under § 227(c)(3) unpersuasive for construing § 227(c)(5), which speaks only to “telephone calls,” and noted it would reach the same result irrespective of the FCC’s views. Because the claim rested solely on unsolicited texts, the court dismissed with prejudice and did not reach alternative arguments.
The Central District of California: Texts Are “Telephone Calls” Under § 227(c)(5)
One day earlier, in Miller v. S. Brown & Associates, Inc., the Central District of California ruled the other way, denying the defendant’s Rule 12(b)(6) motion and holding that text messages are “calls” within the meaning of § 227(c)(5). The court concluded that under controlling Ninth Circuit decisions, text messages constitute “calls” under the TCPA, and therefore a § 227(c)(5) claim may proceed based on texts. The court rejected the defendant’s reliance on the Seventh Circuit’s contrary reading in Steidinger, emphasizing it was bound by Ninth Circuit authority.
Why the Courts Split
The divergence turns on interpretive starting points and constraints. A district court in the Ninth Circuit is bound to apply applicable precedent from the Ninth Circuit, and the district courts there have concluded the Ninth Circuit has spoken on this issue. In districts without controlling authority on this issue, such as the District of Colorado, the court was free to adopt what it concluded was the most persuasive approach, Steidinger’s textualist approach, anchoring “telephone call” to 1991-era dictionary definitions and statutory structure distinguishing “telephone call” from broader terms like “telephone solicitation” or “telephone call or message”. The California decision did not need to rely on or review agency guidance because circuit law was deemed dispositive, whereas the Colorado decision considered and then discounted FCC interpretations promulgated under other subsections and found them nonbinding for § 227(c)(5).
This increasing split of authorities makes it more important than ever to have TCPA counsel familiar with the latest developments in this field. That will provide the best chances of formulating and prosecuting the correct strategy tailored for the facts and circumstances of each specific case.
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