Dialing Back FCC’s Rule on Written Consent Requirement for Telemarketing Robocalls
Key Takeaways
- The U.S. Court of Appeals for the Fifth Circuit recently overturned longstanding precedent under the Telephone Consumer Protection Act (TCPA) when it set aside a decades-old Federal Communications Commission (FCC) rulemaking that had required companies to obtain prior express written consent to make autodialed telemarketing calls or telemarketing calls using a prerecorded or artificial voice.
- The U.S. District Court for the District of Maryland recently joined the Fifth Circuit in that decision.
- The rulings build on recent U.S. Supreme Court decisions limiting agency deference, signaling that courts are increasingly willing to take a fresh look at the FCC’s interpretations of the TCPA.
Background
The TCPA prohibits entities from making calls using an automated telephone dialing system (i.e., autodialer) or an artificial or prerecorded voice without the prior express consent of the called party. But the FCC had long drawn a distinction in its rules implementing the TCPA between entities making informational calls (which the FCC said require prior express consent) and telemarketing calls (which the FCC said require prior express written consent). The Fifth Circuit recently handed down its decision in Bradford v. Sovereign Pest, rejecting more than a decade of FCC interpretive guidance and holding that prior express oral consent suffices for telemarketing calls under the TCPA. Now, just over one month later, the District of Maryland has followed suit, ruling in favor of the defendants on the same basis in Bradley v. DentalPlans.com.
These decisions represent another significant blow to federal agency authority following the Supreme Court's recent decisions in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine and instructed courts to apply the ordinary tools of statutory interpretation rather than defer to agencies’ interpretations of statutes, and McLaughlin Chiropractic Assoc., Inc. v. McKesson Corp, which applied Loper Bright to FCC interpretations in civil enforcement proceedings.
The Courts’ Reasoning
Applying Loper Bright, the Fifth Circuit relied on Black's Law Dictionary's definition of "express consent" from 1990 (just prior to the passage of the TCPA) and determined that the term "prior express consent" includes both oral and written consent. Based on that reading, the Fifth Circuit held that "contrary to the FCC's regulation, Congress permits either written or oral consent for any autodialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has 'the prior express consent of the called party.'" The court stated plainly, "The statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent."
And now the Fifth Circuit is not alone in this interpretation. On March 20, 2026, the U.S. District Court for the District of Maryland held in Bradley that the TCPA does not require prior express written consent to make automated or artificial or prerecorded telemarketing calls. The court explained that under Loper Bright and McLaughlin, it could no longer defer to the FCC's interpretation of the TCPA and that the statute's general consent requirement did not permit the FCC to impose a heightened and more specific written-consent requirement.
Takeaways
Regulated entities operating in the Fifth Circuit (and, increasingly, elsewhere) may have new opportunities to rely on oral consent for telemarketing calls. Companies should carefully evaluate their consent practices and consider the jurisdictional implications of where they operate and any governing law provisions in their messaging terms of service. The Bradford and Bradley decisions also signal that courts are open to novel arguments in TCPA cases where the FCC's rules extend beyond a plain reading of the statutory text.
More broadly, Bradford and Bradley show that legal issues under the TCPA that were once considered settled law are vulnerable to reconsideration under Loper Bright and McLaughlin. Companies should monitor ongoing developments in this area, as the growing body of case law rejecting FCC interpretive authority under the TCPA signals that additional challenges to longstanding FCC rules may succeed.
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