Unsolicited Texts Held Insufficient to Establish DNC Violation

​Recent Supreme Court rulings and their impact on agency deference fundamentally altered the landscape of TCPA litigation, a fact highlighted by a recent federal court decision in the Central District of Illinois in which unsolicited marketing texts sent to a DNC-listed number were held insufficient to establish a DNC violation.

Loper Bright, McLaughlin, and the End of Binding Agency Interpretations

In Loper Bright Enterprises v. Raimondo (decided June 28, 2024) the Supreme Court overruled the 40-year-old Chevron deference doctrine, under which courts were required to defer to an agency’s reasonable interpretation of ambiguous statutory language.

On June 20, 2025, in McLaughlin Chiropractic Associates v. McKesson Corp. the Court took the next logical step by addressing a specific procedural barrier that could have undermined Loper Bright’s holding. The case dealt with whether the Hobbs Act created an exception to the independent judicial review mandated by Loper Bright. The Hobbs Act provides that courts of appeals have “exclusive jurisdiction” to review certain agency orders, and some courts interpreted this to mean that district courts were bound by agency interpretations in enforcement proceedings.

Justice Kavanaugh’s majority opinion in McLaughlin clarified that the Hobbs Act’s exclusivity applies only to pre-enforcement challenges, not enforcement proceedings. This ensures that Loper Bright’s mandate for independent judicial interpretation cannot be circumvented through procedural rules.

Prior to Loper Bright and McLaughlin, courts were generally required to defer to Federal Communications Commission (FCC) interpretations of the TCPA as binding precedent. The McLaughlin ruling established that "district courts are not bound by the agency's interpretation but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency's interpretation."

In this brave new post-McLaughlin world, many of the fundamental assumptions underpinning TCPA jurisprudence are no longer valid, as the plaintiffs recently discovered in Jones et al. v. Blackstone Medical Services, LLC.

Jones Background and Procedural Posture

The Jones litigation emerged from allegations that defendant Blackstone Medical Services conducted an aggressive telemarketing campaign targeting consumers whose numbers were on the National Do Not Call Registry.

The three plaintiffs filed a consolidated class action complaint asserting violations under both the National DNC Registry provisions (47 C.F.R. § 64.1200(c)(2)) and Internal Do Not Call List requirements (47 C.F.R. § 64.1200(d)). Critically, the factual allegations underpinning the plaintiffs’ DNC claim centered primarily on the receipt of unsolicited text messages and a single live phone call, a distinction would prove dispositive under the court's analysis.

The statutory underpinnings for the private right of action for violations of the National DNC can be found in Section 227(c)(5) of the TCPA, which states in relevant part:

A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State… an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation…

The defendant in Jones moved to dismiss the DNC claims, arguing that text messages do not qualify as “telephone calls” as the term is used in Section 227(c)(5). Hence the single live agent call was insufficient to trigger the private right of action under Section 227(c)(5).

DNC Text Message Claims: Before and After McLaughlin

Prior to Loper Bright and McLaughlin, plaintiffs bringing DNC claims based on unsolicited text messages relied on several FCC orders supporting the position that text messages should be treated as “calls” under Section 227(c)(5) of the TCPA.

In Jones, the plaintiffs’ central authority was the FCC’s 2003 Report and Order titled “Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991,” in which the FCC stated:

“We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number… This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.”

The Jones plaintiffs also relied on several subsequent FCC orders to further support their arguments, as well as various regulations and court decisions that relied on them.

In the pre-McLaughlin age of agency deference, that would have no doubt decided the matter, because the FCC’s interpretation of the TCPA as set forth in those orders would have been binding precedent. That is not what happened.

Instead, the court applied the Loper Bright and McLaughlin rulings. While it acknowledged the FCC’s “level of expertise as to the various forms of communication existing at the time of the TCPA’s enactment as well as now,” it also recognized that it had both the authority and the obligation to independently interpret the statute.

The court did so by interpreting the plain language of the statute, which explicitly references “telephone call” without defining the term, requiring the court to apply the ordinary meaning of “telephone call” as that term was used at the time the statute was enacted back in 1991.

The TCPA was enacted in 1991, but commercial text messaging did not emerge until 1992, a chronological analysis that proved central to the court’s reasoning that Congress could not have intended to include text messages within the scope of “telephone call.”

Implications for DNC Claim Requirements

The Two-Call Requirement: The court’s holding establishes that the statutory requirement for “more than one telephone call within any 12-month period” cannot be satisfied by text messages alone under Section 227(c)(5). This interpretation has profound implications for DNC litigation strategy, as many contemporary telemarketing campaigns rely heavily on text messaging rather than traditional voice calls.

Pleading Standards: The decision clarifies the pleading requirements for DNC claims by establishing that text message allegations cannot support claims under either 47 C.F.R. § 64.1200(c)(2) (National DNC Registry) or 47 C.F.R. § 64.1200(d) (Internal DNC Lists). Plaintiffs must now allege receipt of actual voice calls to satisfy the statutory threshold.

Class Action Implications: The court’s analysis has particular significance for class action litigation. The decision resulted in dismissal of the entire action because “allegedly ‘violative text messages’ stand ‘at the core of Plaintiffs’ factual allegations’”. This suggests that mixed classes including both voice call and text message recipients may face significant certification challenges.

What Does it Mean for DNC Claims?

The Jones v. Blackstone Medical Services decision represents a paradigmatic example of statutory interpretation in the post-McLaughlin era. By applying ordinary principles of textual construction while affording appropriate respect to agency expertise, the court demonstrated how federal district courts now approach TCPA interpretation.

However, for those who think this holding of an Illinois District Court is universally applicable throughout the nation, the Jones decision occurred simultaneously with a contrary ruling by a court in the District of Oregon in Wilson v. Skopos Financial, LLC.

Thus, the Jones decision only stands for the fact that deference to FCC interpretations of the TCPA are no longer the law of the land. What that law is, however, appears to depend entirely on which jurisdiction yUnsolicited Textsou’re calling in to.