Overview
Since the Supreme Court's April 2021 decision in Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), which resolved the deep circuit split as to what constitutes an autodialer under the Telephone Consumer Protection Act (TCPA) and adopted a narrow, industry-favorable construction of the term, the overwhelming majority of TCPA plaintiffs have pursued claims alleging the receipt of unlawful prerecorded message calls, and/or telemarketing calls and marketing text messages in violation of the TCPA's Do Not Call (DNC) provisions set forth in 47 U.S.C. § 227(c). And, since the Supreme Court's decision last year in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025), holding that the Hobbs Act does not bind district courts in private enforcement proceedings to Federal Communications Commission (FCC) interpretations of the TCPA, litigants have been fighting over a threshold issue—whether text messages are "calls" under the DNC rules. District courts have split on the issue. But on July 14, 2026, in Steidinger v. Blackstone Med. Servs., -- F. 4th --, No. 25-2398, 2026 WL 2028517 (July 14, 2026), the Seventh Circuit held that marketing text messages are not actionable telemarketing calls subject to the protections of Section 227(c) and its implementing regulations and, thus, there is no private DNC cause of action arising out of the receipt of text messages.
By way of background, the TCPA's DNC rules generally prohibit the "initiation" of "telephone solicitations" to "residential" telephone numbers that are listed on either the National Do Not Call Registry or a seller's entity-specific internal DNC list. In Steidinger, the plaintiffs alleged, among other things, that they continued to receive marketing text messages from the defendant after they requested to be added to its internal DNC list and, thus, the defendant violated the TCPA's DNC provisions set forth in Section 227(c). At the district court level, the defendant moved to dismiss, arguing that Section 227(c)(5), which allows a DNC claim to be filed by "[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity" (emphasis added), only creates a private right of action for telephone calls, not text messages. The district court agreed and dismissed the case.
On appeal, the Seventh Circuit affirmed, framing the question as "whether § 227(c)(5)'s reference to unwanted telephone calls extends to text messages" and concluded "that § 227(c)(5) does not permit plaintiffs to sue for the receipt of unwanted texts." Steidinger, 2026 WL 2028517 at *1. In reaching its conclusion, the court analyzed both the plain meaning and the context of the statute. As to the former, the court noted Section 227(c)(5)'s explicit reference to the phrase "telephone call." Id. at *2. The court explained that "‘telephone call' couldn't have been thought to cover text messages when the TCPA was enacted in 1991, because the first text message was not sent until the following year." Id. Thus, the court considered what "telephone call" meant in 1991, applying ordinary dictionary definitions that all led to the same result—"in 1991, a ‘telephone call' referred to communication via sound." Id. (Emphasis added.) With respect to the statutory context, the Seventh Circuit looked at the provisions surrounding Section 227(c)(5) that employ the phrase "telephone solicitation," a defined term meaning "the initiation of a telephone call or message for the purpose of encouraging the purchase [of] . . . goods[ ] or services." Id. The court reached the common-sense conclusion, supported by traditional canons of statutory construction, that, because other provisions of the TCPA, including other subsections of Section 227(c) specifically, use the broader phrase "telephone solicitations," whereas Section 227(c)(5) is phrased in terms of "telephone calls" only, Congress must have intended for the terms to mean different things and "refer to different forms of communication by telephone." Id. at *3. In sum, the court made clear that "both the overall statutory scheme and the ordinary public meaning of telephone call indicate that § 227(c)(5)'s private right of action does not extend to unwanted text messages." Id. Hard stop.
Steidinger is the first federal appellate court decision to squarely address the issue. Some might argue that the Ninth Circuit's decision issued earlier this year in Howard v. Republican Nat'l Comm., 164 F.4th 1119, 1125-–28 (9th Cir. 2026) was the first post-McLaughlin case to consider the issue. However, the specific issue before the court in Howard was whether text messages utilize "artificial or prerecorded voices" under the regulated technology Section 227(b) of the TCPA, rather than the statute's DNC provisions. Further, that court's conclusion that text messages are "calls" under the TCPA is dicta given that the conclusion was not necessary for the resolution of the exact issue before the court. Finally, it bears noting that the Howard court found that, although it was no longer required to defer to the FCC's historical position that text messages are "calls," its holding that Section 227(b)'s reference to "calls" encompasses text messages was consistent with, and guided by, the appellate court's prior decision in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). In Satterfield, another Section 227(b) case, the Ninth Circuit found that it was required to give broad deference to the FCC's views under Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Supreme Court subsequently overruled Chevron in Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
Most district courts within the Ninth Circuit and elsewhere that have found that text messages are calls under the DNC rules since McLaughlin have relied largely on circuit precedent, such as Satterfield. Putting aside that nearly all of that so-called "precedent" applied Section 227(b) rather than Section 227(c)—a point noted by the Steidinger court—it bears noting Justice Gorsuch's concurrence in Loper Bright, in which he concluded that prior decisions decided under Chevron apply only to the parties in those cases, not to courts and parties in future cases:
[A] past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain. Instead, the Constitution promises, the American people are sovereign and they alone may, through democratically responsive processes, amend our foundational charter or revise federal legislation.
(Emphasis added.) In the one case of which we are aware where a defendant made such argument relying on Judge Gorsuch's concurrence—see Wilson v. Tradercodes, LLC, No. 1:25-cv-03211, Def.'s Resp. to Pl.'s Not. of Supp. Auth. (ECF 24) (N.D. Ga. filed Oct. 31, 2025)—the district court reached the same conclusion as Steidinger, that text messages are not calls for purposes of Section 227(c) and dismissed the complaint. See Tradercodes, Order (ECF 33) (N.D. Ga. Mar. 17, 2026).
Steidinger gives TCPA DNC defendants a strong, directly applicable federal appellate court decision for their quiver. But defendants also should not overlook Justice Gorsuch's concurrence in Loper Bright when defending DNC cases, especially in the Ninth Circuit where several district courts have stated that, were they writing on a blank slate rather than applying Satterfield, they would find that marketing text messages are not actionable under Section 227(c).
