No one enjoys receiving unsolicited telemarketing text messages, but can consumers sue organizations for sending them? Increasingly, the answer depends on whether the federal courts in which consumers bring their lawsuits will defer to the agencies Congress charged with protecting them in the wake of recent U.S. Supreme Court decisions holding that those courts need not.
A recent decision from the Eastern District of Pennsylvania, Pero v. Brown-Daub Chevrolet of Nazareth, No. 25-7016, suggests that the court will continue to be persuaded by those agencies’ regulations and interpretations in such cases. In Pero, Judge Timothy Savage held that unsolicited text messages sent to numbers on the National Do Not Call Registry (“DNCR”) qualify as “telephone calls” under the Telephone Consumer Protection Act’s (“TCPA”) private right of action, in part because of the Federal Communications Commission’s (“FCC”) guidance on the topic.
For consumers bringing TCPA suits in eastern Pennsylvania, the decision preserves an important protection against unwanted and intrusive telemarketing texts. Elsewhere, however, the answer is less certain. Soon after Pero was decided, the Seventh Circuit reached the opposite conclusion, holding in Steidinger v. Blackstone Medical Services, No. 25-2398, that text messages are not “telephone calls” under the TCPA.
The conflicting decisions illustrate a growing disagreement among courts over the TCPA’s reach following the Supreme Court’s weakening of agency deference on questions of statutory interpretation—one that could lead to the end of a federal remedy for unwanted texts.
The TCPA and its protections for consumers
Congress enacted the TCPA in 1991 to curb abusive telemarketing practices and protect consumers from unwanted communications. Among other things, the statute places limits on the use of automated telephone equipment (also known as auto-dialers or robocalls) and on unwanted “telephone solicitations.”
The dispute in Pero arose from a narrow question of statutory interpretation. Section 227(a)(4) of the TCPA defines a “telephone solicitation” as a “call or message” made “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . . .” However, Section 227(c)(5) of the statute, which provides a private right of action regarding unwanted telephone solicitations to numbers on the DNCR, allows a person whose number is on the DNCR and has received “more than one telephone call” within a 12-month period to sue the caller. The question before Judge Savage in Pero was whether the reference to “telephone call” in Section 227(c)(5) encompasses text messages or is limited to telephone calls.
Loper Bright and McLaughlin end courts’ required deference to administrative agencies
When Congress passed the TCPA, it delegated rule-making authority to the FCC, including the ability to create a National Do Not Call registry. Since 2003, the FCC has interpreted “telephone call” to include text messages. Until recently, federal courts were required to follow the FCC’s interpretation.
The split in authority over whether a “telephone call” includes texts stems from the U.S. Supreme Court’s one-two punch in Loper Bright Enter. v. Raimondo, 603 U.S. 369 (2024), and McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025). These successive cases drastically changed how courts evaluate agency interpretations of statutes.
In Loper Bright, the Supreme Court eliminated Chevron deference created by the Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, when it held that courts—not administrative agencies—must independently determine the meaning of statutory text. The following year, in McLaughlin, the Court limited agency deference in civil enforcement cases, holding that district courts adjudicating TCPA claims are not bound by the FCC’s interpretation of the statute under the Hobbs Act, technically known as the Administrative Orders Review Act. Together, those decisions opened the door for courts to independently decide whether a “telephone call” under Section 227(c) includes text messages.
A Pennsylvania car dealership’s repeated texts led to a TCPA lawsuit
In Pero v. Brown-Daub Chevrolet of Nazareth, Catherine Pero filed a putative class action against Brown-Daub Chevrolet of Nazareth, Pennsylvania, alleging the dealership continued sending her marketing-related text messages after she opted out of receiving them in violation of the TCPA. According to the complaint, one of the dealership’s employees overrode her opt-out request, and she subsequently received at least six unsolicited promotional texts within three months. Brown-Daub moved to dismiss, taking advantage of an argument McLaughlin made newly viable, claiming Section 227(c)’s private right of action applies to “telephone calls,” not text messages.
Judge Savage rejected that argument and denied Brown-Daub’s motion to dismiss, relying on three principal considerations.
First, he examined the TCPA’s text. Although text messages did not exist at the time Congress enacted the TCPA, Judge Savage concluded that the statute’s definition of “telephone solicitation” in Section 227(a)(4) as the “initiation of a telephone call or message” evinces a congressional intent to regulate more than telephone calls. The court also consulted dictionary definitions of “telephone,” “message,” and “call” that were contemporaneous with the TCPA’s enactment, concluding those definitions supported treating text messages as prohibited telephone solicitations under the statute.
Second, Judge Savage found persuasive the FCC’s position that the DNCR’s protections extend to text messages. Over the course of about a quarter of his decision, he walked through the FCC’s interpretation of Sections 227(b) and (c) of the TCPA, including the FCC’s January 2024 decision expressly extending the DNCR’s protections to text messages and its earlier rulings interpreting “telephone call” in Section 227(b)’s robocall provisions to include text messages.
Third, Judge Savage cited persuasive authority from other courts, both before and after Loper Bright and McLaughlin, that have concluded that text messages qualify as “telephone calls” under the TCPA. He also cited a Third Circuit decision decided before Loper Bright and McLaughlin, Gager v. Dell Fin. Servs., L.L.C., 727 F.3d 265 (3d Cir. 2013), that held that the TCPA’s prohibitions on using automatic dialing systems included text messages. He further noted that, post-Loper Bright and McLaughlin, two other judges in the Eastern District of Pennsylvania had already reached the same conclusion, making his decision consistent with the emerging consensus within the district that consumers whose numbers appear on the DNCR can pursue TCPA claims in the district against organizations that send them unsolicited telemarketing texts.
The Seventh Circuit enters the chat, holding that text messages are not “telephone calls”
Pero aligns with several district courts that have held post-Loper Bright and McLaughlin that text messages qualify as “telephone calls” under Section 227(c)(5), including the Northern District of California, the Southern District of Florida, the District of Oregon, and the Western District of Texas.
However, the Section 227(c)(5) calls-versus-text-messages question recently reached the Seventh Circuit, making it the first federal court of appeals to address it. In Steidinger v. Blackstone Medical Services, the plaintiffs alleged they received repeated telemarketing texts promoting home sleep tests, even after replying “STOP” to opt out. Like the defendant car dealership in Pero, Blackstone argued that Section 227(c)’s private right of action applies to telephone calls, not text messages. The Seventh Circuit agreed.
In so holding, the court emphasized Congress’s deliberate choice of language in that section. While Congress used the broader phrase “telephone solicitation” elsewhere in Section 227(c), it chose to use “telephone call” in Section 227(c)(5), the specific provision that creates the private right of action. Because Congress used different terms in neighboring provisions, the Seventh Circuit concluded it intended different meanings for different terms and provided a narrower remedy for unwanted calls, but not for all solicitations by telephone.
Like the Pero court, the Seventh Circuit also relied on contemporaneous dictionary definitions, but it seized on a definition of telephone that referred to communication through “sound” to exclude texts. Unlike the Pero court, the Seventh Circuit found little persuasive value in the FCC’s prior interpretations or other decisions construing Section 227(b), reasoning that those authorities addressed different statutory language than the private right of action contained within Section 227(c). Accordingly, the court held that Section 227(c) of the TCPA does not authorize suits against organizations that send unsolicited text messages to numbers on the DNCR.
Message received—for now?
For now, Pero preserves existing protections for consumers bringing suit in eastern Pennsylvania who have registered their telephone numbers on the DNCR list. Companies whose text messages solicit customers and are sent or received within the jurisdiction must continue to treat messages to telephone numbers on the DNCR as regulated telemarketing contacts, maintain effective opt-out systems for consumers to use and employees to follow, and ensure they have either the recipient’s consent or an established business relationship before sending promotional text messages—and promptly honor any opt-out request, which revokes any prior consent or established business relationship.
At the same time, Steidinger demonstrates that this issue is far from settled. In light of its holding, consumers filing suit in Illinois, Indiana, or Wisconsin federal courts against organizations that send them unsolicited text messages despite being on the DNCR will not enjoy the same protection under federal law as consumers suing in eastern Pennsylvania. With district courts continuing to disagree, we can expect that other circuit courts of appeals, and perhaps ultimately the Supreme Court, will be asked to decide whether Section 227(c)’s private right of action encompasses unsolicited text messages. Unless and until those courts weigh in or Congress amends the TCPA, the availability of a federal remedy for unsolicited marketing texts will increasingly depend on where a consumer files suit.
On the surface, Pero and Steidinger show how differently courts read the same statutory language. The bigger story is what made these differences possible in the first place. By ending Chevron deference in Loper Bright and freeing courts from the FCC’s interpretations of the TCPA in McLaughlin, the Supreme Court handed corporate defendants a tool to reopen settled consumer protections and an invitation to find courts willing to narrow them.
In this post-Chevron world, well-established consumer protections may become vulnerable to the next motion to dismiss that persuades a judge that an administrative agency’s pro-consumer interpretation of a statute is wrong.
Mark Mailman is Managing Shareholder of Francis Mailman Soumilas, P.C., a leading consumer rights law firm. He can be reached at mmailman@consumerlawfirm.com.