On October 21, 2026, a federal court in the Eastern District of California refused to dismiss a proposed Do Not Call class action over two alleged marketing texts, as a Central District court had three weeks earlier. Both declined to follow the Seventh Circuit’s July ruling that texts aren’t telephone calls under the Do Not Call lawsuit provision. For businesses texting California numbers, that defense has now lost at the pleading stage in two districts, though it’s preserved for appeal and the Ninth Circuit hasn’t ruled.
What the Eastern District decided in Lewis v. Tenth Hall
The case is Lewis v. Tenth Hall, Inc., No. 2:26-cv-01810-AC, a putative class action. According to the court’s October 21 order, the plaintiff alleges that his number is on the National Do Not Call Registry and that the defendant sent him marketing texts on or about March 21 and April 9, 2026. The defendant moved to dismiss on the ground that the TCPA doesn’t apply to text messages, relying on Steidinger v. Blackstone Medical Services.
The court denied the motion. Its order states that the defense argument rests on “non-binding authority from the Seventh Circuit,” and it concluded, in the same order: “Courts in this District are not obligated to follow the Seventh Circuit’s interpretation” of the statute. The court relied on two Ninth Circuit decisions treating a text as a “call” under § 227(b), the provision covering autodialed and prerecorded calls: Satterfield v. Simon & Schuster (2009) and Howard v. Republican National Committee (2026). It also relied on other district courts in the circuit that have applied them to Do Not Call claims.
The defendant also asked, in its reply brief, for permission to take the question straight to the Ninth Circuit. The court refused. The order explains that the request was “improperly raised for the first time in reply,” and that the split with the Seventh Circuit “does not justify an immediate interlocutory appeal.”
What the Central District decided in Combs v. UG Franchise Operations
The Lewis order adopted the reasoning of Combs v. UG Franchise Operations, LLC, No. 5:26-cv-01764-KK-DTB (C.D. Cal. Oct. 2, 2026), another putative class action. According to the Combs order, the defendant’s “sole ground for dismissal” was that the Do Not Call private right of action doesn’t extend to texts.
The court rejected it. It wrote that Steidinger “is not binding on this Court” and that, because the Ninth Circuit has construed “call” to include texts, “this Court is bound by that construction,” per the order. The complaint alleges texts sent after the plaintiff asked them to stop and while his number was on the Registry. Accepting those allegations as true at the pleading stage, the court held they state claims under both the Registry rule and the internal do-not-call rule. Neither order decides whether either defendant violated the law. Both cases are at the pleading stage.
Where the question stood before October
The Do Not Call lawsuit provision, 47 U.S.C. § 227(c)(5), gives a claim to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the FCC’s rules. The FCC’s rules say they reach “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” under 47 C.F.R. § 64.1200(e). But since the Supreme Court’s 2025 decision in McLaughlin Chiropractic Associates v. McKesson Corp., courts in private cases read the statute for themselves instead of deferring to the FCC.
In July, the Seventh Circuit read it in favor of defendants. In Steidinger v. Blackstone Medical Services, the court wrote: “Repeated, unwanted text messages are undoubtedly a nuisance. But they do not fall within the private right of action created by § 227(c)(5).” That holding binds federal courts within the Seventh Circuit. It doesn’t bind courts in California, which sit in the Ninth Circuit.
The Ninth Circuit’s own text-message rulings came under § 227(b). Its January 2026 decision in Howard v. Republican National Committee treated a text as a call for that provision. Whether the same reading carries over to § 227(c)(5) is the question Lewis and Combs answered yes to. I wrote in our guide to spam text lawsuits that Steidinger was worth raising in every text-only Do Not Call case in California. It still is, but these two orders change what raising it is likely to accomplish.
What changes for businesses that text, and what doesn’t
In California’s federal courts, the reported orders so far have rejected the argument at the pleading stage. Lewis relies on three Central District decisions applying the Ninth Circuit’s reading to § 227(c)(5). A defendant should plan to litigate the facts alongside any motion.
The argument isn’t gone. District court orders bind no other court, and the Ninth Circuit hasn’t decided the question. A defendant that wants the argument available on appeal has to raise it in the trial court. My view is that the motion is still worth filing in most cases, but to preserve the issue for appeal and to shape settlement talks, not as the main defense.
Ask for an interlocutory appeal in the opening motion, not the reply. Lewis refused to consider certification partly because the defendant first asked for it in reply. A defendant that wants the Ninth Circuit to hear the question early should build the request into its original papers and explain why the question meets the statutory standard. Lewis held it didn’t, so the odds are poor, but a request raised late gets no hearing at all.
The real defenses haven’t changed. Consent records, an established business relationship, the requirement of more than one violating message in 12 months, the ten-business-day window for honoring stop requests, and the safe harbor for companies with written Registry procedures all still apply. I’d spend the first weeks of a case on those records instead of on the motion. Our post on Do Not Call lawsuit defenses covers each one. So does the caution in Combs: texts after a stop request were part of what kept that case alive, which is why the opt-out pipeline deserves an audit before a complaint arrives.
Exposure is the same as it was. A violation of the Do Not Call rules carries up to $500 per message, and a court may increase that to up to $1,500 if it finds the violation willful or knowing, under § 227(c)(5).
Preparing a text-message Do Not Call defense in California
- Preserve the sending platform’s records for each number named in the complaint, including every message, its time stamp, and the consent record behind it, under a litigation hold.
- Pull the opt-out history for those numbers: each inbound reply, how the system classified it, and the date suppression took effect.
- Pull the Registry scrub records and the version dates of the Registry files used for the campaigns that reached them.
- Collect the texting platform contract, any lead-source agreements, and the exact message templates sent.
- Talk to a lawyer before responding to the complaint, contacting the plaintiff, or deciding whether a Steidinger motion fits the case.
The firm’s TCPA defense lawyers page summarizes how claims involving marketing texts to registered numbers are defended.
Defending text-message Do Not Call claims in California
If your company has been sued over marketing texts to numbers on the Registry, these rulings shift the defense from the pleadings to the records. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving marketing texts to registered numbers. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The orders discussed are Lewis v. Tenth Hall, Inc., No. 2:26-cv-01810-AC (E.D. Cal. Oct. 21, 2026), ECF No. 23, and Combs v. UG Franchise Operations, LLC, No. 5:26-cv-01764-KK-DTB (C.D. Cal. Oct. 2, 2026), as filed in the record of another case. The appellate decisions are Steidinger v. Blackstone Medical Services, No. 25-2398 (7th Cir. July 14, 2026), and Howard v. Republican National Committee, No. 23-3826 (9th Cir. Jan. 13, 2026). The statute is 47 U.S.C. § 227, and the FCC’s rules are at 47 C.F.R. § 64.1200.
This post is general information about the Telephone Consumer Protection Act and related laws as of October 22, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.