Florida Court Stays TCPA Discovery While Weighing Whether Texts Are ‘Calls’

A recent Southern District of Florida decision in McGonigle v. Pure Green Franchise Corp. has stayed TCPA discovery while the court decides whether marketing text messages qualify as “calls” under the TCPA’s do‑not‑call (DNC) provisions, signaling skepticism that texts are covered and deepening an emerging split among courts on this issue.

What the Florida court did

• The court granted the defendant’s motion to stay discovery in a putative TCPA class action involving unsolicited marketing texts sent to numbers on the National Do Not Call Registry.

• The judge held that whether section 227(c) creates a private right of action for text messages is a pure question of law that can be decided on a motion to dismiss, without the burden of class discovery.

Why the “texts as calls” question matters

• The plaintiff’s claim is that SMS marketing to a mobile number on the DNC list violates 47 U.S.C. § 227(c) and the related DNC regulations, effectively treating a text as a “telephone call” for DNC purposes.

• The defendant argues that § 227(c) does not extend to text messages at all, meaning DNC-based private suits cannot be premised on SMS, even though other TCPA provisions clearly reach certain texts.

Court’s skepticism of FCC interpretations

• The plaintiff urged the court to defer to Federal Communications Commission interpretations that treat text messages as “calls,” arguing Congress allowed the FCC to “fill up the details” of the TCPA.

• The court questioned this deference, stating that treating “telephone call” in § 227(c)(5) as including texts would likely more than double the number of private causes of action, which it said is not merely filling in details and may even raise nondelegation concerns about how broadly Congress empowered the FCC.

Emerging split in TCPA DNC text cases

• In 2025, federal courts in the Northern and Middle Districts of Florida and the Central District of Illinois held that text messages are not “telephone calls” under the TCPA’s DNC provisions, often relying on the ordinary meaning of “telephone call” and Congress’s distinct use of “call” versus “text message.”

• Other courts, including some outside Florida, have treated texts as “calls” for various TCPA provisions, creating a growing divergence that McGonigle underscores rather than resolves.

Practical implications for businesses and litigants

• For businesses that use SMS marketing, the stay illustrates the strategic value of early motions challenging whether § 227(c) applies to texts at all, which can pause costly class discovery while threshold legal questions are resolved.

• Because outcomes are now jurisdiction‑specific, companies should review how courts in their target jurisdictions treat texts under the TCPA DNC provisions and adjust consent language, recordkeeping, and risk assessments accordingly.