In Bradford v. Sovereign Pest Control of Texas, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Telephone Consumer Protection Act (TCPA) does not require “prior express written consent” for telemarketing calls that use artificial or pre-recorded voice messages. Instead, the court concluded that the TCPA requires only “prior express consent,” which may be provided orally or in writing.
On January 13, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Howard v. Republican National Committee (RNC) offering two important interpretations of the applicability of the Telephone Consumer Protection Act (TCPA) to certain text message communications:
On June 20, the U.S. Supreme Court issued its opinion in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. —- — S.Ct. —- 2025 WL 1716136 (2025), addressing whether, under the Administrative Orders Review Act (Hobbs Act), 28 U.S.C. §2342, district courts are bound by the Federal Communication Commission’s (FCC) interpretation of the Telephone Consumer Protection Act (TCPA). The Fourth, Sixth, Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits had held that because the Hobbs Act vests exclusive jurisdiction to determine the validity of FCC orders in the circuit (appellate) courts, district courts were bound by the FCC’s orders interpreting the TCPA.
In Insurance Marketing Coalition Ltd. v. FCC, — F.4th —-, 2025 WL 289152 (11th Cir. Jan. 24, 2025), the U.S. Court of Appeals for the Eleventh Circuit came to the rescue of the lead generation industry, striking down new regulations that were set to go into effect on January 27. Under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, sellers and telemarketers are prohibited from making certain telemarketing calls using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice messages without “prior express consent.” On December 18, 2023, the Federal Communications Commission (FCC) issued an order adopting rules aimed at closing what it termed the “lead generator loophole” (2023 order). The FCC objected to lead generators using a single webform to obtain prior express written consent for a list of marketing partners. The FCC also objected to webforms that obtained broad consent for marketing calls about a wide-range of products and services. The 2023 order adopted a new definition of “prior express written consent” that would have prohibited consumers from giving consent to receive marketing calls from more than one company at a time or about products and services that were not “logically and topically associated with” those promoted on the website. The Eleventh Circuit held that the FCC exceeded its authority under the TCPA because the consent restrictions conflicted with the ordinary meaning of “prior express consent.” This decision is consistent with the recent shift in the willingness of federal courts to review administrative decisions after the Supreme Court overruled Chevron deference in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).