Unreported / Non-Citable
Background
Plaintiff Kevin Arguello sued R.E.S.A., Inc. in the Northern District of California, alleging that on July 2, 2025 and September 29, 2025 the company, through a real estate sales agent, sent two marketing text messages to his cellular phone at 7:36 a.m. and 7:14 a.m. in his time zone. He pleaded a single claim under the Telephone Consumer Protection Act's private right of action, 47 U.S.C. § 227(c)(5), contending that more than one call within twelve months violated the FCC rule barring telephone solicitations before 8 a.m. or after 9 p.m. local time, 47 C.F.R. § 64.1200(c)(1). He seeks statutory damages plus declaratory and injunctive relief for himself and a putative class. These facts are allegations accepted as true for purposes of the motion, and no class has been certified.
R.E.S.A. moved under Rule 12(b)(6) to dismiss the Second Amended Complaint, arguing that section 227(c)(5) covers only telephone calls and that texts are not calls. It relied on the Seventh Circuit's decision in Steidinger v. Blackstone Medical Services, 182 F.4th 532 (7th Cir. 2026), which concluded that texts are not calls and that section 227(c)(5) therefore did not authorize the plaintiff's suit. R.E.S.A. also briefly suggested that the quiet-hours rule, which speaks of residential telephone subscribers, might not reach a text sent to a cellular phone. The court heard oral argument on October 22, 2026 and ruled the same day.
The Court’s Holding
Judge Jacqueline Scott Corley denied the motion, holding that text messages qualify as telephone calls under section 227(c)(5). She declined to apply Steidinger because doing so would contravene binding Ninth Circuit authority: Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), and Howard v. Republican National Committee, 164 F.4th 1119 (9th Cir. 2026). Those decisions used traditional canons of construction, the ordinary meaning of call, and the statute's purpose of protecting residential subscribers' privacy to conclude that a text message is a call within the meaning of the TCPA.
The court rejected R.E.S.A.'s effort to confine those cases to section 227(b). The Ninth Circuit described its holdings as applying to the TCPA generally. Under the presumption of consistent usage a word bears the same meaning throughout a statute, and R.E.S.A.'s argument that subsection (b) is broader did not rebut that presumption. Neither the ordinary-meaning nor the purpose analysis depends on anything unique to subsection (b). The court said it was joining the other district courts in the Ninth Circuit that it cited, which reached the same conclusion.
On the regulation, the court held that 47 C.F.R. § 64.1200(e) expressly makes paragraph (c) applicable to telemarketing calls or text messages to wireless numbers. It added that the Ninth Circuit, in Chennette v. Porch.com, Inc., agreed with the FCC that cell phones are presumptively residential for purposes of section 227(c). Arguello therefore plausibly alleged a claim, and the regulatory argument was no separate ground for dismissal. R.E.S.A.'s request, made for the first time in reply, to certify an interlocutory appeal under 28 U.S.C. § 1292(b) was improperly raised and was not considered. The order disposes only of the motion to dismiss.
Key Takeaways
- Under Ninth Circuit precedent as applied by this district court, a text message is a telephone call under section 227(c)(5), so a quiet-hours claim based on texts can survive a motion to dismiss.
- Satterfield and Howard were not limited to section 227(b); the court read them as defining call for the TCPA as a whole and applied the presumption of consistent usage.
- The quiet-hours rule reaches text messages to wireless numbers through 47 C.F.R. § 64.1200(e), and cell phones are presumptively residential under Ninth Circuit authority.
- Arguments first raised in a reply brief, including a request for section 1292(b) certification, may be disregarded.
- Denying a motion to dismiss decides only that the pleaded claim is plausible, not liability, class certification, or whether the messages were actionable solicitations.
Why It Matters
This is a district court order, not a published appellate opinion, so it carries persuasive rather than binding weight even within its own district. Its value lies in showing how a federal court in the Ninth Circuit reads Satterfield and Howard in light of the Seventh Circuit's contrary Steidinger reasoning, which gives plaintiffs here a firm basis to plead quiet-hours claims founded on text messages.
Much remains open. The order does not decide whether the messages were telephone solicitations, whether the twelve-month requirement is met, whether any damages are owed, or whether a class should be certified. Because the court did not consider the interlocutory appeal request, R.E.S.A. may press its statutory argument on appeal at a later stage.