Last June the Northern District of California dismissed claims arising out of the receipt of unsolicited text messages (Satterfield v. Simon & Schuster).  The district court dismissed the claims on the basis that (1) the equipment used to send the messages didn't fall under the definition of an automatic dialer under the Telephone Consumer Protection Act and (2) the calls were made (and messages sent) with the express consent of the recipient.

The Ninth Circuit heard oral argument today and posted the audio on its website [link].  All I can say is that the Ninth Circuit seemed extremely skeptical (if not hostile) to the position of the text messagers/advertisers (the Defendants below).  (I predicted as much in my post at the time.)  I have to give Simon & Schuster's lawyer credit.  A lesser advocate would have just folded under the questioning.  It was pretty rough.  With the caveat that oral argument isn't very indicative of how the court will rule, it wouldn't be going out on a limb to say that they (Defendants) will be lucky to get a remand which leaves room for the district court to reach the same result after further factual development. The more likely result will be a reversal which leaves little doubt as to whether the messages fall under the TCPA.
      
NB:  it's worth listening to the audio whether or not you're interested in the case.  A good example of how a skeptical judge can hammer down during argument.  Also, the ambiguity in the statute was the result of placement of a comma.  There's a drafting lesson in here somewhere.