The Telephone Consumer Protection Act’s (TCPA) Do Not Call (DNC) restrictions have become less clear-cut in recent times. Previously, receiving two or more unsolicited marketing calls or texts to a residential number on the DNC list could lead to a claim. However, a series of new cases has cast this framework into doubt, causing turbulence and confusion among district courts.
At the most extreme end, the court in Internicola v. Mortgagepros recently held there is no cause of action for DNC claims at all. This decision is based on the fact that 227(c)(5) gives parties the right to sue for claims rising out of FCC regulations implemented under this section, but the section mandated the FCC to issue DNC implementation by 1992, which was not done until 2003.
While this is a fun little ruling it flies in the face of hundreds of decisions reaching the opposite conclusion. Still it is something to keep an eye on because if the ruling is adopted by other courts it could mean the end of TCPA DNC claims entirely. Other rulings suggest that the TCPA DNC’s rules do not apply to cell phones. For instance, in Michael Anthony v. Brian Marketing Group, the court refused to enter a default judgment to the plaintiff, concluding that cell phones are not “residential” lines.
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This ruling is possible due to recent Supreme Court decisions allowing district courts to disregard FCC rulings that have long held cell phones are “residential” when used for personal purposes. Decisions like Anthony would limit DNC rights of action to calls placed to landline phones only, significantly reducing the scope of the statute given the limited role of landlines in 2026.
On the more moderate side, the majority of courts now hold that SMS messages are not “telephone calls” and cannot form the basis for a DNC claim. See Ankrah v. Streamline Funding for a recent example. While there are still numerous jurisdictions concluding otherwise, the map on this subject is decidedly green: You will notice the district courts in the 3rd, 5th and 9th are permitting DNC claims involving SMS messages to proceed. The rest of the country, essentially, says otherwise.
The unavailability of the DNC to prevent unwanted marketing messages in numerous jurisdictions seems likely to make the problem of spam texting worse. However, small businesses can breathe a sigh of relief as they will no longer be targeted by as many spam lawsuits. Courts that have ruled SMS messages are subject to DNC restrictions have done so emphatically, such as in Hopkins v. Homelight, where the court refused to certify an interlocutory appeal on the issue.
