Since 2009 Courts have been applying FCC rulings suggesting that text messages are calls subject to the TCPA even though text messages didn’t exist at the time the TCPA was passed and the statute does not mention text messages in its primary restrictions.

With the death of Chevron deference a renewed focus has been put on the issue. Courts have now been freed up to evaluate anew whether text messages really qualify as a “call” under the TCPA.

Well an appellate court in New Mexico just held last week that text messages are not calls, at least for the purpose of interpreting a criminal statute banning harassing telephone calls.

In State of New Mexico v. Valerio 2025 WL 1621551 (Appls N.M. June 6, 2025) the defendant had been convicted under a statute making it illegal to “telephone another” for harassment when he had sent a series of threatening text messages to an ex-girlfriend.

On appeal, however, the appellate court noted the language of the statute repeatedly referenced telephone calls and not text messages. It determined the language of the statute simply could not be read to include text messages, even though texts are a common way of using a telephone:

The State argues that a plain language construction will lead to absurd results in a time when “text messaging is considered the prevalent form of communication in the United States.” According to the State, “[t]o conclude that the primary form of cell phone communication does not qualify as “use of a telephone” would render the telephone harassment statute partially useless” and “might permit violent, threatening text messages to be sent in New Mexico with no legal consequences.” Even if text messaging is more prevalent than telephone calls, we are not persuaded that a plain language reading would either render the telephone statute useless or preclude legal consequences for the type of harassment that occurred here. 

Wow.

So there you go. At least one court agrees that statutes regulating the use of a telephone and telephone calls does not cover text messages.

We’ll keep an eye on this.