TCPA Decision Weakens FCC Written Consent Requirement for Telemarketing

Another court used McKesson and Loper Bright to limit requirements under the Telephone Consumer Protection Act (TCPA). Following the Fifth Circuit decision we discussed recently, a federal court in Maryland held that the Federal Communications Commission (FCC) lacks the authority to require businesses to obtain prior express written consent to send autodialed and prerecorded calls and texts under the TCPA.

In Bradley v. DentalPlans et al., the district court cited recent case law from the Fifth and Eleventh Circuits that has curtailed the FCC’s ability to interpret the TCPA’s “prior express consent” requirement.

FCC Authority Challenged in TCPA Interpretation

The court also noted recent case law in which the Fourth Circuit emphasized that that an agency must be delegated clear authority to both implement and interpret the statute at issue. Aligning with the Fifth Circuit’s decision, the Maryland court determined that Congress has only required prior express consent, and the FCC could not take a more expansive interpretation and impose a prior express written consent requirement.

This is critical because, unlike “prior express consent,” the FCC has stated that “prior express written consent” requires a signed written agreement that contains specific disclosures and authorizers the sender to deliver telemarketing messages using an automatic telephone dialing system or a prerecorded message.

This is a more heightened standard when compared with the FCC’s “prior express consent” requirement for informational messages using the same automated technology, which requires the recipient to voluntarily and knowingly provide their phone number to receive messages related to the subject of the disclosure. (Listen to our episode about telemarketing and texting on Venable’s Ad Law Tool Kit Show podcast.) If other courts follow suit, then companies could begin to rely on a lower level of consent when sending marketing communications via telephone and text message.

Court Applies TCPA Consent Standard to DentalPlans Case

Applying this reasoning, the Maryland court determined that the plaintiff supplied the requisite prior express consent when they initially called DentalPlans to enroll in a dental savings plan. The plaintiff spoke on the phone with DentalPlans and agreed to receive updated dental plan information by an automatic dialing system or prerecorded message.  

While the plaintiff argued that she agreed to receive only informational messages, and not marketing messages as she alleged, the Maryland court found that the FCC’s distinction between telemarketing and informational messages to be unsupported by the TCPA’s statutory text: “The FCC, not Congress, distinguished between telemarketing and informational robocalls and did so in the context of which standard governs the calls at issue—prior express consent or prior express written consent.”

After granting summary judgment to DentalPlans, the court decertified the class. While the scope of this ruling is limited, an appeal by the plaintiff will put the TCPA consent issue directly before the Fourth Circuit.

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