Amidst the ongoing battle over whether SMS messages are calls for purposes of the federal TCPA– the statute that prevents robocalls to cell phones– a court in Texas just rules SMS messages are covered by the statute based on an out-of-circuit ruling from 40 years ago that had nothing to do with telecom.

In Alvarez v. Fiesta Nissan, 2026 WL 202930 (S.D. Tex. Jan 26, 2026) the court struggled with the issue of whether a “telephone call” referenced in the TCPA included SMS messages, given the fact that SMS messages really didn’t exist back when the TCPA was passed in 1991.

To solve the problem the court took unusual inspiration from the decision in  In re Erickson, 815 F.2d 1090 (7th Cir. 1987), which the court finds “remarkably relevant.”

in Erickson the famed Judge Easterbrook considered a Wisconsin statute that made certain farming property unavailable to satisfy a civil judgment, allowing a farmer to retain “one mower” and “one hay loader.”

As the Alvarez court analyzed the ruling:

Just one problem: since the law’s passage in 1935, farm technology had changed considerably. Old horse-drawn “mowers” were replaced by hydraulic, tractor-mounted haybines with hay conditioners, and “hay loaders” were replaced by automatic bailing/tying machines. Id. at 1092–93. And yet, the court found that the new technology was embraced by the old terms. Specifically, Judge Easterbrook wrote that a “ ‘mower’ is not limited to the thing called a mower today,” because “[a] statutory word of description does not designate a particular item (e.g., “a Massey-Ferguson Mower, Model GY– 2589, manufactured in 1935, serial number 3875808”) but a class of things that share some important feature.” Id. at 1092 (emphasis added). Indeed, “a mower with a built-in stereo cassette deck would still be a ‘mower’, … because it would still cut the hay,” yet with “a second function, entertainment, just as the haybine has a second function, crushing the hay.” Id. at 1093.

From this the Alvarez court reasoned:

Just as a mower that both cuts and conditions hay is still a mower, a telephone which communicates texts and voice is still a telephone. And just as an aircraft built a hundred years from now such that it “could not have been dreamed today” can be embraced by 2012 statute regulating aircraft, so can a call from a telephone built in 2025—or 2125 for that matter—be embraced by a 1991 statute.

Ok…

Just one problem with this analysis.

Defendant never argued a smartphone receiving SMS messages isn’t a phone. It argued SMS messages aren’t calls– and those are two very different arguments.

Erickson dealt with the question of what category of technology was covered by a statute based on the essential functionalities of that technology.  So Erickson is indeed on point if the issue is whether a smartphone qualifies as a cell phone although it can do lots of other things rather than just accept phone calls. Then the case would be dead on.

But the issue here is whether a telephone call is covered by the statute, not whether a smartphone is still a phone. So, yes the Skunkworks Dark Star Maverick pilots that can hit Mach 10 is still just an airplane under a 1915 statute and a Pixel 10 Pro Fold is still just a “telephone” although it can fold itself into a singularity and conjure AI to rule the world.

But none of that answers the question of whether an SMS message is a phone call.

I suppose one could argue that Erickson stands for the broader concept that words in statutes must be read to keep up with technology, but that really wasn’t Easterbrook’s point. It was that statutes refer to CATEGORIES not to SPECIFIC items. But the CATEGORIES still must be interpreted according to the intent of the legislature.

So did Congress intend the category of things called “telephone calls” to include “SMS”? That is a question Alvarez does not directly pass on– although that is the ultimate issue.

To me this is like saying a statute that was passed in 1900 and governed “vehicles” applied to airplanes that had not yet been invented because, hey, both move you along. Probably a case on point from the 1930s. Maybe I’ll go find it and use it in my next brief.

Bottom line– law is fun. And really understanding what makes a court/judge tick can be the difference between winning and losing due to some 40-year-old-out-of-circuit-off-topic-farming case.