As we have emphasized in multiple prior posts, the shift away from regulatory deference after the Supreme Court’s decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), has turned upside down much TCPA precedent. Since our last TCPA round-up, courts have continued to reevaluate how FCC regulations should come into play when interpreting the statute, with the most significant development occurring just last month when the Seventh Circuit determined that a text message is not a call under the TCPA. We summarize here the major developments since our last update, listed in alphabetical order by topic area.
Are Text Messages Calls?
The most consequential post-McLaughlin wrangling continues to be on the issue of whether a text message constitutes a “call” under the TCPA. As we discussed last month, the Seventh Circuit recently became the first federal appellate court to hold that a text message is not a call, reasoning that “call” carried a sound-based meaning in 1991 and that Congress’s use of the broader term “telephone solicitation” (defined to include “call or message”) elsewhere in Section 227(c) reflects a deliberate choice to exclude texts from that particular remedy. Steidinger v. Blackstone Med. Servs., 2026 WL 2028517, *2 (7th Cir. July 14, 2026). But the Seventh Circuit is by no means alone in revisiting what plaintiffs’ lawyers regularly portrayed as a settled issue of law. Since our last update, district courts in both Stockdale v. Skymount Property Group, LLC, 825 F. Supp. 3d 622, 624 (N.D. Ohio 2026), and Irvin v. Sonic Industries Services, LLC, 2026 WL 1098403, *1 (N.D. Ga. Apr. 20, 2026), reached the same conclusion based on similar textual grounds.
In contrast to Steidinger, the Ninth Circuit reiterated earlier this year its long-established precedent that a text message can constitute a “call” under the TCPA. See Howard v. Republican Nat’l Comm’n, 164 F.4th 1119, 1124 (9th Cir. 2026). Numerous district courts also recently have held that texts qualify as “calls” under the TCPA. See Wilson v. Better Mortg. Corp., 811 F. Supp. 3d 631, 638 (S.D.N.Y. 2025); King v. Bon Charge, 823 F. Supp. 3d 508, 525 (D. Del. 2025); Pero v. Brown-Daub Chevrolet of Nazareth, 2026 WL 1747214, *2 (E.D. Pa. June 17, 2026); Rubin v. Staples, Inc., 2026 WL 881651, *6 (D.N.J. Mar. 31, 2026) (dismissed on other grounds).
ATDS
Another issue that continues to be frequently contested in TCPA cases is whether the equipment used by the defendant is an automatic telephone dialing system (“ATDS”). The recent decision in Ksiazkiewicz v. Woods Basement Systems, Inc., 2026 WL 2224639, *2 (E.D. Mo. Aug. 3, 2026), reiterated the formidable pleading hurdle established in Facebook, Inc. v. Duguid, 592 U.S. 395, 403–04 (2021). Specifically, the court required that the alleged autodialer must actually generate the numbers called—a system that merely stores and dials phone numbers does not amount to an ATDS. In Ksiazkiewicz, the court dismissed an ATDS claim because the plaintiff failed to allege that defendant used equipment capable of randomly or sequentially generating the numbers dialed, as opposed to simply dialing numbers from a stored list. 2026 WL 2224639 at *2.
Class Certification
In Lyngaas v. IQVIA, Inc., 2026 WL 752253, *6 (E.D. Pa. Mar. 17, 2026), the court denied renewed class certification in a junk-fax case, holding that a narrowed class definition based on “SENT” disposition codes in third-party fax logs still failed Rule 23’s ascertainability requirement because the reliability of those logs remained genuinely disputed. The decision underscores that plaintiffs cannot overcome an ascertainability problem by simply redefining a class around contested data; plaintiffs must provide a reliable and administratively feasible method of identifying class members.
Consent
In another win for defendants hoping to get out from under FCC regulations, the Fifth Circuit recently held that the FCC’s requirement of “prior express written consent” for prerecorded telemarketing calls under 47 C.F.R. § 64.1200(a)(2) has no basis in the TCPA’s text. Bradford v. Sovereign Pest Control of TX, Inc., 167 F.4th 809, 812 (5th Cir. 2026). Section 64.1200(a)(2) requires only “prior express consent,” which based on 1990s-era usage is understood to include oral consent. The court held that the plaintiff’s oral provision of his phone number, standing alone, sufficed for prerecorded renewal-inspection calls, regardless of whether they were characterized as telemarketing. The District of Maryland reached the same conclusion in Bradley v. Dentalplans.com, concluding that the FCC lacked authority to graft a writing requirement onto the statute’s oral-consent standard. 2026 WL 788856, *7 (D. Md. Mar. 20, 2026). Together, these decisions provide a path to substantially narrow exposure for businesses that obtained only oral consent for autodialed or prerecorded calls.
Quiet Hours
The King v. Bon Charge case discussed above also addressed the TCPA’s “quiet hours” regulation, which prohibits telemarketing calls or texts before 8:00 a.m. or after 9:00 p.m. local time. The court dismissed the plaintiff’s claim, holding that by texting a keyword to subscribe to marketing messages, the plaintiff provided “prior express invitation or permission” necessary to remove the messages from the TCPA’s definition of a “telephone solicitation” altogether. 823 F. Supp. 3d at 528. The court held that the quiet hours regulation requires only ordinary express consent (rather than written consent). Id. As a result, a business’s routine text-to-subscribe process may defeat a quiet hours claim.
