When I was young there was a terrible commercial that used to air involving a cartoon owl licking a tootsie roll pop– a sucker with a tootsie roll center that kids used to enjoy in the 90s.

“How many licks does it take to get to the center of a tootsie roll pop?” the commercial would ask before the owl impulsively bites the pop with a large crunch leading the announcer to conclude solemnly “The world may never know.”

TCPAWorld’s version of the “the world may never know” inquiry is whether an SMS message that exceeds the 160 character limit counts as two messages or only one.

This can be important for a number of reasons but in TCPA circles it matters most in: i) determining the amount of damages a TCPA defendant might be liable for; and ii) determining (in the instance of a single text message) whether the “more than one” requirement of 227(c) has been triggered.

The issue has been elusive for years, but we may now finally have our answer (spoiler alert: its not good for defendants.)

In Connor v. Servicequick, 2025 WL 2855393 (D. Colo. Oct. 8, 2025) the defendant sent ONE text message to repeat litigator Jay Connor’s phone, allegedly without consent.

The court concluded that because the single text exceeded 160 characters it actually counted as TWO text messages and allowed the Plaintiff’s DNC case to proceed:

The TCPA provides a private right of action for “[a] person who has received more than one telephone call [or text message] within any 12-month period by or on behalf of the same entity,” when that person’s phone number is listed on the DNC registry. 47 U.S.C.A. § 227(c)(5). 3 Here, Plaintiff not only pleads allegations regarding the text contained in each of the two messages, ECF No. 35 at 6 ¶¶ 30, 31, Plaintiff’s allegations are supported by an excerpt from his phone records, which reflect his receipt of two separate messages, id. at 7 ¶ 32. Other courts have relied on billing records in determining the number of contacts plaintiffs received when evaluating TCPA claims. See, e.g., Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1156 (N.D. Ill. 2009) (acknowledging that “billing records…provide some information about each job billed” and that “client invoices indicate how many faxes were sent”). While the screenshot of Plaintiff’s phone appears to reflect one continuous message, see ECF No. 38-2, that does not necessarily refute or “utterly contradict[ ]” Plaintiff’s allegation that he received two separate messages, particularly given Plaintiff’s allegations regarding his billing records and the complexities of the background technological processes at work. See Flores v. City of Aurora, No. 1:20 cv-00618-RBJ, 2021 WL 4033117, at *7 (D. Colo. Sept. 3, 2021) (citation omitted). At this stage, where Plaintiff is entitled to have his properly alleged facts accepted as true and enjoy all reasonable inferences drawn from those facts, these allegations are sufficient for Plaintiff’s claim to survive. See Est. of Hebert by & through Bourgeois v. Marinelli, No. 1:22-cv-02582-CNS-STV, 2023 WL 4744927, at *12 (D. Colo. July 25, 2023) (denying a motion to dismiss even where it “[was] a close call” that plaintiff “alleged enough factual content” to set forth claim).

Wow.

So there you have it.

A single text message exceeding 160 characters counts as two texts for TCPA purposes–at least according to this court.

Then again, some courts find SMS messages don’t even trigger the TCPA’s DNC rules so who knows what’s what in this crazy TCPAWorld of ours.

Chat soon!