On May 21, a panel of the Seventh Circuit Court of Appeals heard argument in Steidinger v. Blackstone Medical Services on whether text messages are covered as “telephone calls” in § 227(c)(5) of the Telephone Consumer Protection Act (TCPA). While questions asked by judges during oral arguments are no guarantee of how the court will ultimately rule, Judge Thomas K. Kirsch II and Judge Doris L. Pryor appeared skeptical of the plaintiff’s position that Congress intended “telephone call” to include text messaging in 1991. Judge Nancy L. Maldonado did not ask any questions. While we will need to wait for the decision, there is an excellent chance that the panel will hold that plaintiffs cannot sue over marketing text messages under § 227(c)(5), creating a potential circuit split with the Ninth Circuit’s opinion in Howard v. Republican National Committee that will need to be decided by the U.S. Supreme Court.