Advertisers that market via text have for years been attempting to comply with a decades-old statute stretched to cover technology it never contemplated. This week the Seventh Circuit decided it had been stretched far enough.

In Steidinger v. Blackstone Medical Services, the Seventh Circuit became the first federal appeals court to squarely hold that a text message is not a "telephone call" under the private right of action in TCPA Section 227(c)(5), the Do Not Call provision. Judge Kirsch's opinion straightforwardly explains the court's reasoning. In 1991, when Congress passed the TCPA, "telephone call" meant a voice call. Text messaging did not exist yet. SMS was still a year away. The court declined to read "liberality" into a term the FCC had, for decades, simply assumed covered texts by agency interpretation under the old Hobbs Act deference regime.

That regime is gone. Last year's Supreme Court decision in McLaughlin Chiropractic v. McKesson told district courts they are no longer bound to accept an agency's reading of an ambiguous statute. Courts can now do the interpretive work themselves, giving the agency's view "appropriate respect" rather than automatic deference. Steidinger is the first circuit level decision to apply that instruction to the question of whether Do Not Call rules cover texts, and it lands with real teeth. There is no DNC private right of action for unwanted marketing texts in Illinois, Indiana, or Wisconsin, at least not under Section 227(c)(5).

A few things worth flagging before anyone celebrates too hard.

First, the holding is narrower than the headlines suggest. Section 227(b), the provision governing autodialed calls and texts sent without consent, is untouched. The court was careful to say so. That is still where most SMS marketing exposure lives, and Steidinger does nothing to shrink it.

Second, it’s worth noting that the Ninth Circuit took a different analytical path when it interpreted "call" under 227(b) earlier this year in Howard v. Republican National Committee, reading it as any attempt to communicate by phone rather than anchoring it to the term's 1991 meaning. Different subsection, different question, and the Seventh Circuit said as much in declining to treat Howard as relevant. But it is a reminder that not every court is going to reach for the historical dictionary the way Judge Kirsch did.

Third, R.J. Reynolds is running the same play one step further in North Carolina federal court. Reynolds is arguing that Section 227(c), the Do Not Call provision at issue in Steidinger, does not reach texts or calls to cell phones, and it is leaning on the Supreme Court's judicial deference precedent to get there. That is still a subsection (c) argument, not an attempt to knock out the TCPA's consent and autodialer rules under subsection (b). But it goes further than Steidinger did by extending the same logic to calls, not just texts, and to cell phones generally. It’s worth watching whether the court will be willing to take that extra step.

What does this means in practice right now? If your company runs SMS marketing programs and has been sued or threatened under subsection (c)(5) for texts alone, Steidinger is a genuinely useful tool, particularly if you are anywhere in the Seventh Circuit. If you are defending consent based claims under subsection (b), keep your compliance program exactly as buttoned up as it was last week, since none of this impacts it. And regardless of jurisdiction, keep an eye on North Carolina. If Reynolds gets a court to extend the Steidinger logic to calls and to cell phones generally under subsection (c), that is a meaningfully bigger dent in DNC exposure than Steidinger alone, even though it still leaves subsection (b) fully intact.

The FCC spent over twenty years telling everyone what "telephone call" means. Courts are now allowed to disagree, and at least one already has. More will follow. I would not bet the compliance program on which way the Supreme Court eventually breaks this, but I would absolutely bet on more litigants trying.