Federal Courts Clash Over Whether TCPA Covers Unwanted Text Messages

A federal court in New Jersey has ruled that text messages can qualify as “telephone calls” under the Telephone Consumer Protection Act’s private right of action for Do-Not-Call violations, adding another decision to a developing disagreement over how the statute applies to modern communications.

In Owen-Brooks v. Better Homes & Gardens Real Estate, LLC, decided August 21, 2026, the U.S. District Court for the District of New Jersey allowed a TCPA claim involving allegedly unwanted real estate marketing texts to move forward. The decision comes just over a month after the Seventh Circuit reached the opposite conclusion in Steidinger v. Blackstone Medical Services, creating an increasingly important divide in how courts interpret Section 227(c)(5).

Plaintiff Susan Owen-Brooks alleged that she registered her telephone number with the National Do-Not-Call Registry in 2013 and began receiving real estate marketing texts around March 2025. According to the complaint, the messages came from individuals identifying themselves as agents associated with Better Homes and Gardens Real Estate and its New Jersey franchisee, Native American Group. Owen-Brooks alleged that she had not consented to the communications.

Courts Split Over Whether Texts Are “Calls”

At the center of the dispute is the language of Section 227(c)(5), which provides a private right of action when a person receives more than one prohibited “telephone call” from the same entity within a 12-month period.

The New Jersey court concluded that the term can encompass text messages. Among its reasoning, the court considered dictionary definitions from around the time Congress enacted the TCPA in 1991 and interpreted a telephone call broadly enough to include communication made through a telephone.

That interpretation conflicts directly with the Seventh Circuit’s July decision in Steidinger. There, the appellate court concluded that the ordinary public meaning of “telephone call” in 1991 referred to sound-based communication and therefore did not include text messages. The Seventh Circuit affirmed dismissal of the plaintiffs’ TCPA claims under Section 227(c)(5).

The distinction is significant because Steidinger represents federal appellate authority, although its holding is binding only within the Seventh Circuit.

Different Readings of the Same Statute

The New Jersey court also considered how the term “call” has been interpreted elsewhere within the TCPA.

Courts have previously treated texts as calls when applying Section 227(b). The New Jersey court relied in part on that broader treatment, along with the TCPA’s consumer-protection purpose, in concluding that excluding text messages could undermine Do-Not-Call protections as communication technology evolves.

The Seventh Circuit took a different approach. It emphasized that Congress used different terminology throughout the TCPA and concluded that the specific reference to “telephone calls” in Section 227(c)(5) should not automatically carry the same meaning applied under differently worded provisions. The appellate court also determined that broader policy considerations could not override its reading of the statutory text.

The New Jersey opinion reportedly does not cite Steidinger, leaving unclear whether the appellate ruling was presented to the court before its decision.

Consent and Franchisor Liability Claims Continue

The defendants also raised consent and vicarious liability arguments in seeking dismissal.

According to the decision, defendants pointed to a third-party website registration as evidence of consent. The court declined to resolve that issue at the motion-to-dismiss stage, finding that consent is an affirmative defense that generally cannot be decided from outside evidence unless it is apparent from the complaint.

Claims against Better Homes and Gardens Real Estate were also permitted to proceed based on allegations concerning its relationship with the franchisee. The complaint alleged involvement in training franchisees on marketing practices and financial benefit from resulting business, which the court found sufficient at this stage to support the asserted agency theory.

TCPA Interpretation Remains Unsettled

Owen-Brooks does not eliminate the disagreement surrounding text messages and Section 227(c)(5). Instead, it reinforces the competing interpretations developing after recent Supreme Court decisions reshaped how courts approach agency interpretations of federal statutes.

For businesses using text messaging for marketing and consumer outreach, the decisions underscore that TCPA exposure may depend partly on jurisdiction. With the Seventh Circuit holding that Section 227(c)(5) does not provide a private action for unwanted texts and other courts reaching the opposite conclusion, further appellate guidance could become increasingly important as similar cases move through federal courts.