As I discussed at the big TCPA Summit yesterday the case law is somewhat fractured on the issue of whether SMS messages are “calls” for purposes of the TCPA’s DNC rules following McKesson.
While the score was 3-3 (i.e. three courts ruling in either direction) just a couple of weeks ago, the tide has turned against callers as #biglaw firms have entered the defense and met with the failure so characteristic of their involvement in TCPA cases.
The latest setback comes with a great big asterisk, however.
In *Dilanyan v. Hugo Boss Fashions, Inc., *2:25-cv-05093-JLS-BFM (C.D. Cal. Dec. 3, 2025) the dying Hugo Boss brand (does anyone wear Boss anymore?) was sued in a TCPA class action over alleged SMS messages sent outside of the TCPA’s marketing time limits.
Boss moved t…
As I discussed at the big TCPA Summit yesterday the case law is somewhat fractured on the issue of whether SMS messages are “calls” for purposes of the TCPA’s DNC rules following McKesson.
While the score was 3-3 (i.e. three courts ruling in either direction) just a couple of weeks ago, the tide has turned against callers as #biglaw firms have entered the defense and met with the failure so characteristic of their involvement in TCPA cases.
The latest setback comes with a great big asterisk, however.
In *Dilanyan v. Hugo Boss Fashions, Inc., *2:25-cv-05093-JLS-BFM (C.D. Cal. Dec. 3, 2025) the dying Hugo Boss brand (does anyone wear Boss anymore?) was sued in a TCPA class action over alleged SMS messages sent outside of the TCPA’s marketing time limits.
Boss moved to dismiss arguing SMS messages aren’t calls under the TCPA’s DNC rules (which include the time limits.)
The court refused to dismiss the case on that ground holding the Ninth Circuit’s earlier ruling in *Satterfield *–which held SMS messages are calls for 227(b) purposes– was broad enough to cover the 227(c) claim before it.
While this is a questionable ruling the Court decided to certify the issue for immediate interlocutory review– and that’s the asterisk I was referring to.
The *Dilanyan *court is essentially advising the appellate court that this is a tricky issue and one that needs to be looked at right away. While the appellate court is free to turn down the request they often will heed a district court’s certification as one worth looking into.
Does this mean the Ninth Circuit Court of Appeals will soon rule on the issue of whether SMS are “calls” subject to DNC restrictions? Maybe. We will have to wait to see what happens here.
We will, obviously, keep an eye on this.
For now, however, the score is 7-3 in favor of courts holding SMS messages ARE subject to the TCPA’s DNC rules– so act accordingly.
Much love.
Also– literally only a week left to retain Troutman Amin, LLP before our rates rise! Be smart.
Chat soon.
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