SMS Consent for Marketing: TCPA Requirements and Best Practices

TL;DR

Text-message marketing sits under the same Telephone Consumer Protection Act framework as voice calls, but the analysis splits across two different provisions of the statute — Section 227(b), which governs the technology used to send the message, and Section 227(c), which governs the Do-Not-Call regime — and they do not rise and fall together.
In Steidinger v. Blackstone Medical Services, Inc. (7th Cir. July 14, 2026), the Seventh Circuit became the first federal court of appeals to hold that a text message is not a “telephone call” for purposes of the private right of action in Section 227(c)(5). That eliminated one category of DNC-based text-message class action across Illinois, Indiana, and Wisconsin.
That ruling is narrow, and treating it as a green light is a mistake. It says nothing about Section 227(b), which still requires prior express written consent for autodialed or automated marketing texts to a mobile number; it conflicts with the Ninth Circuit; and it left the FCC’s separate rulemaking authority intact.
State mini-TCPAs fill the gap directly. Wisconsin and Indiana — both inside the Seventh Circuit that decided Steidinger — expressly define their telemarketing statutes to cover text messages, and Florida’s FTSA regulates “telephonic sales calls” that include texts. The federal DNC theory closing does not close the state-law theory.
The consent record that survives an SMS dispute has the same anatomy as any defensible consent record: the rendered disclosure the consumer actually saw, an affirmative opt-in action, an immutable timestamp, the named sender or seller, and an unbroken chain of custody from the opt-in to the number that was actually texted.

Text messaging is the highest-converting outbound channel most lead buyers have, and it is also the fastest-growing source of TCPA and state-law litigation. The reason the two facts travel together is structural. A phone call is expensive, time-consuming, and self-limiting; a text campaign can reach a hundred thousand numbers in an afternoon for a fraction of the cost. When the marginal cost of contact approaches zero, the volume of contact climbs, and the volume of contact is what the statutory scheme is built to police.

The confusion around SMS consent comes from a common but incorrect assumption: that “the TCPA” is a single rule with a single answer for texts. It is not. The statute regulates text-message marketing through two separate provisions that ask different questions, use different definitions, and carry different exposure. Understanding which provision is in play — and understanding that a defense under one does not travel to the other — is the entire game.

The first provision, Section 227(b), asks how the message was sent: was it sent using a regulated technology, such as an automatic telephone dialing system or a system that plays a prerecorded or artificial voice? If so, prior express written consent is required for marketing content to a wireless number.

The second provision, Section 227(c), is the Do-Not-Call regime. It asks a different question: did the recipient signal that they did not want to be contacted, either by registering on the National Do-Not-Call Registry or by asking the sender directly to stop?

A single unwanted marketing text can implicate both. And as a recent appellate decision made vivid, the answer under one provision can move without the answer under the other moving at all.

The 2026 Seventh Circuit Ruling: What Steidinger Actually Held

In Steidinger v. Blackstone Medical Services, Inc., No. 25-2398 (7th Cir. July 14, 2026), the Seventh Circuit held that a text message is not a “telephone call” within the meaning of Section 227(c)(5) — the provision that creates a private right of action for a person who receives more than one telephone call in violation of the Do-Not-Call rules. Because a text is not a “telephone call” under that subsection, the court held, there is no private DNC claim for unwanted marketing texts in the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin.

The reasoning was strictly textual, and it is worth understanding because it defines the ruling’s limits.

Ordinary 1991 meaning. The court began with the ordinary public meaning of “telephone call” when the TCPA was enacted in 1991. Contemporaneous dictionaries defined a telephone as an instrument for reproducing sound at a distance and a “call” as getting into communication by telephone — communication via sound. The first commercial text message was not sent until 1992. A text message, which reproduces no sound, did not fit the 1991 meaning of the term.
Meaningful variation within the statute. The surrounding subsections of Section 227(c) use the defined term “telephone solicitation,” which the statute itself defines as “the initiation of a telephone call or message.” But the private right of action in Section 227(c)(5) reaches only a “telephone call.” Congress used the broader term elsewhere and the narrower term in the private-action provision, and the court presumed that choice was deliberate. The statute’s own definition distinguishes calls from messages, so the two are different things.
The FCC’s 2024 registry extension did not control. The court acknowledged the FCC’s 2024 extension of Do-Not-Call Registry protections to text messages but explained that the extension was promulgated under Section 227(c)(3), which uses the broader “telephone solicitations” language — so it says nothing about the meaning of “telephone call” in the private-action provision. Citing McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., the court reviewed the statutory question de novo and declined to defer to the agency’s reading.

The court was careful about what it was not deciding. It expressly grouped the contrary circuit decisions — including the Ninth Circuit’s Howard v. Republican National Committee (9th Cir. 2026), which held that texts are calls — as cases arising under Section 227(b), not the Do-Not-Call provision. And it acknowledged that repeated unwanted texts are “undoubtedly a nuisance,” locating the remedy in FCC action under other provisions of Section 227 rather than in private Section 227(c)(5) litigation.

Two consequences follow immediately. First, there is now open conflict among the courts of appeals about whether a text message is a “call” under the TCPA — the kind of split that draws Supreme Court attention. Second, and more important for anyone running a text program today: the decision is jurisdictionally narrow, doctrinally narrow, and channels the exposure elsewhere rather than eliminating it.

Why the Ruling Is Not a Green Light

It is tempting to read Steidinger as permission to text more aggressively. That reading is wrong for four independent reasons, and any one of them is enough to keep a compliance program intact.

1. Section 227(b) was never at issue

The ruling addressed only the Do-Not-Call private action under Section 227(c)(5). It did not touch Section 227(b), which independently prohibits sending marketing texts to a wireless number using an automatic telephone dialing system or an artificial or prerecorded voice without prior express written consent. Most automated text campaigns run through platforms that raise a live 227(b) question. A program that relaxes its consent capture on the theory that “texts aren’t calls” has misread which provision does the work: the consent requirement lives in 227(b), and Steidinger left 227(b) exactly where it was.

2. It binds three states and conflicts with the Ninth Circuit

Steidinger is binding only in Illinois, Indiana, and Wisconsin. The Ninth Circuit reached the opposite conclusion, and the deepest bench of district-level “texts are not calls” decisions sits in the Eleventh Circuit, which has not yet ruled at the appellate level. A national text program cannot be built on a rule that applies in three states and is directly contradicted in others. Until the Supreme Court resolves the split, the conservative and correct assumption for a multi-state program is that the DNC rules can reach texts.

3. The FCC’s authority survived

The court declined to defer to the FCC’s interpretation of the private-action provision, but it did not disturb the agency’s independent rulemaking and enforcement authority. The FCC’s 2024 extension of Registry protections to text messages, promulgated under a different subsection, remains in force as a regulatory matter. A private plaintiff losing a Section 227(c)(5) theory in the Seventh Circuit does not disable the agency’s own enforcement track.

4. State mini-TCPAs regulate texts directly

This is the point most likely to catch an over-reading of Steidinger — and the irony is that the two states most affected by the ruling are among those whose own statutes cover texts.

Wisconsin defines “telephone solicitation” to mean “the unsolicited initiation of a telephone conversation or text message” to encourage a purchase, and prohibits solicitations to numbers on the state Do-Not-Call registry. Wis. Stat. § 100.52. A marketer inside the Seventh Circuit can defeat a federal DNC text claim under Steidinger and still face a Wisconsin state DNC claim on the identical text.
Indiana defines a “telephone sales call” to expressly include text, image, and multimedia messages sent via SMS, MMS, or over-the-top messaging, and prohibits such calls to numbers on the state’s quarterly Do-Not-Call listing. Ind. Code § 24-4.7.
Florida’s Telephone Solicitation Act defines a “telephonic sales call” to include text messages and generally prohibits unsolicited automated telephonic sales calls without prior express written consent. Florida remains one of the most active SMS-litigation jurisdictions in the country, and the 2023 FTSA amendments narrowed the dialer definition without removing texts from the statute’s reach.

The through-line is simple. As federal DNC exposure for texts narrows in some circuits, the plaintiffs’ bar shifts to state telemarketing statutes and consumer-protection laws. The exposure does not disappear; it changes venue.

Strip away the litigation and the underlying operational requirement is stable across all of these regimes. Marketing texts to a wireless number, sent through automated technology, require prior express written consent, and that consent has to be provable long after the opt-in.

The federal standard for prior express written consent, at 47 C.F.R. § 64.1200(f)(9), requires an agreement that:

Is in writing, including an electronic record recognized under the E-SIGN Act.
Bears the signature of the consumer, including an electronic signature such as a checkbox or click event tied to the disclosure.
Contains a clear and conspicuous disclosure authorizing the named seller to deliver, or cause to be delivered, marketing messages using an automatic telephone dialing system or an artificial or prerecorded voice.
Discloses that consent is not a condition of purchasing any goods or services.

The FCC’s 2023 Lead Generators Order added the requirement that consent be given to one seller at a time and that the specific seller be identified in the disclosure. Generic “our marketing partners” language does not satisfy the current rule for a texted lead any more than it does for a called one.

Layered on top of consent are the operational SMS rules that plaintiffs and regulators check first, because they are objective and easy to prove:

Opt-out honored. A recipient who replies STOP (or an equivalent keyword) must be suppressed promptly. Failure to honor an opt-out is the single most common precipitating fact in SMS litigation and settlement, and it is provable from the carrier record alone.
Quiet hours. Marketing texts should be confined to the permissible calling window in the recipient’s time zone — generally after 8:00 a.m. and before 9:00 p.m. — not the sender’s.
Sender identification. The message should identify who is texting, consistent with the named-seller disclosure the consumer agreed to.
Registry and litigator scrubbing. Numbers should be scrubbed against the National Do-Not-Call Registry, applicable state registries, and internal suppression lists before send, regardless of the Steidinger question, because the state statutes above reach texts even where the federal private action does not.

The Evidence Problem Is the Real Problem

Every requirement above is satisfiable. The recurring failure is not capturing consent — it is proving it two or three years later, when a plaintiff who received a marketing text says they never opted in, or opted in to someone else entirely.

A texted lead that changes hands makes this worse. The opt-in happened on a form the sender may never have seen, hosted by a publisher or aggregator, for a seller who may or may not be the party that eventually sent the text. When the demand letter arrives, the sender has to reconstruct: the exact disclosure the consumer saw, the affirmative act that constituted the opt-in, the timestamp, the seller named in that disclosure, and an unbroken chain of custody from that opt-in to the specific mobile number that was texted. A screenshot of a form template and a spreadsheet row asserting “consented: yes” do not carry that burden.

The five elements of a defensible SMS consent record are the same five that define a defensible record in any channel:

Rendered disclosure — the actual text of the opt-in disclosure as displayed to the consumer, not a current version of the form.
Affirmative action — evidence of the specific act (a checkbox, a keyword reply, a click) that constituted agreement.
Immutable timestamp — a tamper-evident record of when the opt-in occurred.
Named seller — identification of the specific seller the consumer consented to hear from, satisfying the one-to-one rule.
Chain of custody — an unbroken link from the opt-in event to the exact number that was texted, surviving every hop through the lead’s distribution.

A record with all five authenticates. A record missing any one of them is an assertion, and assertions do not win consent disputes.

SMS Compliance Checklist

Before launching or expanding a text-marketing program:

Key Takeaways

The TCPA regulates marketing texts through two separate provisions. Section 227(b) governs the technology and the consent requirement; Section 227(c) governs the Do-Not-Call regime. A defense under one does not carry to the other.
Steidinger v. Blackstone Medical Services (7th Cir. 2026) held that a text is not a “telephone call” under the Section 227(c)(5) private right of action — but only in Illinois, Indiana, and Wisconsin, in direct conflict with the Ninth Circuit, and without touching Section 227(b) or the FCC’s authority.
The ruling channels exposure rather than eliminating it. State mini-TCPAs in Wisconsin, Indiana, and Florida regulate texts expressly, and plaintiffs are already shifting to state statutes and consumer-protection theories.
Compliant SMS marketing still requires prior express written consent, one-to-one seller identification, DNC and litigator scrubbing, prompt opt-out, and quiet-hours discipline — regardless of the Steidinger question.
The decisive factor in a text dispute is not whether consent existed but whether it can be proven years later. A defensible record has five elements: rendered disclosure, affirmative action, immutable timestamp, named seller, and an unbroken chain of custody to the number that was texted.

Consent is only as strong as the record behind it. See how independent, per-lead verification documents what the consumer actually saw and agreed to — in text and every other channel.