Is a Text Message a Call? Dilanyan May Give Us an Answer and Potentially Opens the Door to Stays in the Ninth Circuit

In Dilanyan v. Hugo Boss Fashions, Inc., the plaintiff brought a putative class action under the TCPA alleging the defendant sent text messages in violation of the “quiet hours” provisions in the statute’s implementing regulations. The plaintiff allegedly received hundreds of texts over time. Dilanyan v. Hugo Boss Fashions, Inc., No. 25-cv-5093, 2025 LEXIS 254358, at *1–2 (C.D. Cal. Dec. 3, 2025).

The defendant filed a motion to dismiss, arguing the claim failed because the TCPA’s private right of action in 47 U.S.C. § 227(c)(5) is limited to “telephone calls,” and a text message is not a call.[1] The court acknowledged the force of the defendant’s argument, agreeing that the ordinary meaning of “telephone call” excludes “text message,” and that texting was not a part of the communications landscape when Congress enacted the TCPA.[2] The court also flagged later amendments to the TCPA that explicitly reference text messages, while noting that Section 227(c)(5) has not been amended to include texts, “suggest[ing] that Congress views a text message as a distinct form of communication to which § 227(c)(5)’s private right of action does not apply.”[3]

Despite all of this, the court denied the motion to dismiss, reasoning it was constrained by the Ninth Circuit’s Satterfield decision, which it read broadly enough to allow the claim through the pleading stage. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). The court, however, made a notable and relatively uncommon procedural decision, and agreed to certify the decision for interlocutory appeal while also staying the case.[4] Following the decision, the defendant filed its petition for interlocutory appeal.

This is a significant development that may result in defendants getting an answer from the Ninth Circuit on a hotly contested question: whether a text message is a call for purposes of Section 227(c)(5)’s private right of action. Defendants in the Ninth Circuit facing TCPA cases putting this question at issue should also consider filing motions to stay in light of Dilanyan. We will continue to monitor this space for developments. 
 

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