Are Cell Phones “Residential Telephones” Under the TCPA?
The U.S. Supreme Court’s historic decisions in Loper Bright Enterprises v. Raimondo and McLaughlin Chiropractic Associates v. McKesson Corporation have reshaped the TCPA landscape by inviting courts to reconsider long-standing FCC interpretations of the statute. One emerging question is whether the TCPA’s Do Not Call protections extend to cell phones at all. A recent decision from the Eastern District of Virginia, McGonigle v. Dickey’s Barbecue Restaurants, highlights the growing debate and suggests that this issue is headed for renewed litigation.
Background
Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991 to regulate (among other things) “residential telemarketing practices.”[1] To that end, the statute required the Federal Communications Commission (FCC) to make rules to “protect residential telephone subscribers’ privacy rights” against unwanted telemarketing.[2] Accordingly, in 2003, the FCC adopted the national Do Not Call Registry.[3] And based on the FCC’s reasoning that it was “consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections,” the FCC permitted not only landline users but also cell phone subscribers to include their numbers on the Registry.[4] The TCPA, in turn, permits residential telephone subscribers who receive “telephone call[s]” in violation of the Do Not Call rules to sue the telemarketers responsible,[5] and the FCC has interpreted this statutory phrase to permit suits based on text messages as well as traditional voice calls.[6]
Before 2024, the FCC’s interpretation of the TCPA generally governed in private enforcement actions against telemarketers, through a combination of courts’ deference to the FCC under the Chevron doctrine[7] and a jurisdictional rule in several circuits that required district courts to give controlling effect to the FCC’s interpretation of the TCPA.[8] But in Loper Bright Enterprises v. Raimondo, the Supreme Court in 2024 overruled Chevron and required courts to interpret statutes according to their “best meaning” at the time of enactment without giving controlling deference to agencies’ interpretations.[9] And in McLaughlin Chiropractic Associates v. McKesson Corporation, the Supreme Court held last year that district courts are not bound by the FCC’s interpretation of the TCPA in private enforcement actions.[10] Following these landmark decisions, the FCC’s interpretation of the TCPA’s Do Not Call provisions are newly vulnerable to challenge on the basis that they are contrary to the text of the statute.[11]
Shifting Legal Landscape
Illustrating the shifting legal landscape under the TCPA after Loper Bright and McLaughlin, the Seventh Circuit recently created a high-profile circuit split – in a decision that Wiley provided amicus support for[12] – by holding that text messages do not qualify as “telephone calls” under the TCPA’s Do Not Call provisions.[13]
Another, related issue that has not yet generated as much attention, but that courts have begun wrestling with anew, is whether cell phone users are even “residential telephone subscribers” protected from unwanted telemarketing at all under the TCPA’s Do Not Call provisions. In other words, are cell phones “residential telephones” within the meaning of the statute? The Eastern District of Virginia’s July 22 decision in McGonigle v. Dickey’s Barbecue Restaurants highlights that there is little binding precedent directly addressing the question, leaving substantial room in jurisdictions around the country for courts to part ways with the FCC on this issue as well.[14]
In McGonigle, the plaintiff brought a putative class action under the TCPA against a barbecue restaurant chain, claiming that he received telemarketing text messages promoting the restaurant on his cell phone even though his cell number is on the Registry.[15] Based on these allegations, he asserted a claim under the TCPA’s Do Not Call cause of action.[16] The restaurant moved to dismiss, arguing that “the TCPA applies only to ‘residential telephones,’” meaning landlines, and so the plaintiff’s cell phone was not protected under the TCPA’s Do Not Call provisions.[17]
The district court rejected the restaurant’s argument.[18] But the court’s analysis shows how the FCC’s interpretation of the TCPA on this point is vulnerable to legal challenge.
The McGonigle court first noted that the “Fourth Circuit has not yet addressed this question,” and it acknowledged that district courts in the Fourth Circuit have disagreed about this issue.[19] For two reasons, the McGonigle court allowed the plaintiff’s claim to proceed. First, the court looked to the “majority view” of district courts in the Fourth Circuit, under which “cell phones ... are entitled to the TCPA’s protection as residential telephones.”[20] Second, the court reasoned that this view is “consistent with the applicable regulatory provisions and FCC interpretation,” which extends the TCPA’s Do Not Call protections to landline and cellular telephone subscribers alike.[21] For these reasons, the McGonigle court concluded that “the use of ‘residential’ in the TCPA is not intended to preclude protections for cellular phones.”[22]
These reasons, however, are hardly conclusive. First, the absence of binding precedent means that federal courts even within the same districts are free to conclude that the TCPA’s Do Not Call protections for “residential” telephones do not apply to cell phones.[23] Second, courts and judges elsewhere have identified reasons why the original meaning of “residential telephone” in 1991 – that is, the meaning courts must adopt after Loper Bright and McLaughlin – may very well be limited to landlines.[24]
Conclusion
The TCPA has long been one of the nation’s most heavily litigated statutes, and after Loper Bright and McLaughlin the scope of the statute is newly open to challenges that were previously unavailable. Although the question of whether the TCPA’s Do Not Call provisions apply to cell phones has not yet been litigated as extensively as other interpretive questions under the TCPA have been recently, courts are having to grapple with that question anew, and a disagreement that ultimately finds its way to the Supreme Court may be merely a question of “when” and not “if.” While some courts, like the district court in McGonigle, may remain reticent to reject the FCC’s interpretation, other courts generally can – and soon may – do so.
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Attorneys in Wiley’s Telecom, Media & Technology; TCPA Litigation and Compliance; Issues and Appeals; and Litigation groups are monitoring the evolving TCPA legal landscape and are ready to help. For more information about this dynamic area of the law, please contact one of the authors.
[1] Pub. L. No. 102-243, § 2(6), 105 Stat. 2394, 2394 (1991).
[2] 47 U.S.C. § 227(c)(1).
[3] See generally 47 C.F.R. § 64.1200; Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014 (2003) (“Rules & Regulations”).
[4] See Rules & Regulations, 18 FCC Rcd. at 14038–39; 47 C.F.R. § 64.1200(e).
[5] 47 U.S.C. § 227(c)(5).
[6] See Howard v. Republican Nat’l Comm., 164 F.4th 1119, 1123 (9th Cir. 2026) (discussing “the FCC’s conclusion that the term ‘call’ in § 227 includes a ‘text message’”).
[7] See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952–54 (9th Cir. 2009).
[8] See, e.g., Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1307 (11th Cir. 2015).
[9] Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024).
[10] McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 151–55 (2025); see generally Duane C. Pozza et al., Supreme Court’s McLaughlin Decision Creates Uncertainty for FCC Orders on the TCPA and Much More, Wiley (July 17, 2025), https://www.wileyconnect.com/supreme-courts-mclaughlin-decision-creates-uncertainty-for-fcc-orders-on-the-tcpa-and-much-more.
[11] See generally Duane C. Pozza et al., Supreme Court’s McLaughlin Decision Creates Uncertainty for FCC Orders on the TCPA and Much More, Wiley Rein LLP (July 17, 2025), https://www.wileyconnect.com/supreme-courts-mclaughlin-decision-creates-uncertainty-for-fcc-orders-on-the-tcpa-and-much-more.
[12] See Br. of NRSC and NRCC as Amici Curiae in Support of Appellees and Affirmance, Steidinger v. Blackstone Med. Servs., LLC, No. 25-2398 (7th Cir. Dec. 29, 2025), ECF No. 24.
[13] Compare Steidinger v. Blackstone Med. Servs., --- F.4th ----, 2026 WL 2028517, at *1 (7th Cir. July 14, 2026) (“Based on the ordinary public meaning of telephone call at the time of the TCPA’s enactment, as well as the context provided by surrounding provisions of § 227, we find that texts are not calls ... .”), with Howard v. Republican Nat’l Comm., 164 F.4th 1119, 1123–24 (9th Cir. 2026) (agreeing with earlier circuit precedent “that a ‘text message’ constitutes a ‘call’ within the meaning of the TCPA”).
[14] No. 1:25-cv-01062 (RDA/IDD), 2026 WL 2114507 (E.D. Va. July 22, 2026).
[15] Id. at *1.
[16] Id. (citing 47 U.S.C. § 227(c)(5)).
[17] Id. at *3.
[18] Id. at *3–4.
[19] Id. at *3 (discussing the “majority view in this Circuit”); cf. Gaker v. Q3M Ins. Sols., No. 3:22-cv-00296-RJC-DSC, 2023 WL 2472649, at *2–3 (W.D.N.C. Feb. 8, 2023) (noting that “[c]ourts that have addressed the issue are split as to whether the TCPA extends to wireless telephone numbers” and holding that cell phones do not come within the TCPA’s Do Not Call protections).
[20] McGonigle, 2026 WL 2114507, at *3 (cleaned up).
[21] Id. at *4.
[22] Id. at *4.
[23] E.g., Nat’l Union Fire Ins. Co. v. Allfirst Bank, 282 F. Supp. 2d 339, 351 (D. Md. 2003) (“[N]o decision of a district court judge is technically binding on another district court judge, even within the same district.”).
[24] See, e.g., Chennette v. Porch.com, Inc., 50 F.4th 1217, 1233 (9th Cir. 2022) (Ikuta, J., dissenting in part) (“Although mobile phones were available in the 1990s when the TCPA was enacted, it was understood that a ‘residential telephone’ referred to a land line at a residence.”); Turizo v. Subway Franchisee Advertising Fund Tr. Ltd., 603 F. Supp. 3d 1334, 1340 (S.D. Fla. 2022) (“The TCPA clearly draws a distinction between cellular telephones and residential telephones.”); Shelton v. Fast Advance Funding, LLC, 378 F. Supp. 3d 356, 363 n.7 (E.D. Pa. 2019) (“[T]his Court questions whether cellular telephone subscribers were intended to be included in the definition of ‘residential telephone subscriber,’ as drafted by Congress in 1991 ... .”).
