Reassessing Telephone Consumer Protection Act Consent Standards After Loper Bright

According to an article by Aaron Gallardo of Kilpatrick, the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron deference doctrine in June 2024, is reshaping how courts interpret agency regulations, particularly under the Telephone Consumer Protection Act (TCPA). 

For over three decades, Chevron allowed courts to defer to federal agencies like the FCC when interpreting ambiguous statutes. Now, post-Loper Bright, courts must independently interpret statutory language, prompting new legal scrutiny of long-standing TCPA regulations, especially regarding terms like “prior express consent” and “residential telephone subscriber.”

Recent cases illustrate this shift. In Cacho v. McCarthy & Kelly, the court held that wireless numbers on the Do-Not-Call Registry could qualify as “residential subscribers” under Section 227(c), rejecting the notion that this term referred exclusively to landlines. The court emphasized that “residential subscriber” refers to the user, not the technology, and that excluding cellphone users would undermine privacy protections. Courts in California and Ohio reached similar conclusions, reinforcing the presumption that wireless numbers used for domestic purposes fall within the statute’s protective scope, especially where Congress delegated the FCC explicit authority under Section 227(c).

Conversely, the Eleventh Circuit in Insurance Marketing Coalition v. FCC vacated part of a 2023 FCC rule that limits what constitutes “prior express consent” under Section 227(b), finding those additions exceeded the agency’s statutory mandate. The court emphasized that “express consent” must align with its plain and common-law meaning: a clear, unmistakable statement, without additional FCC-imposed conditions.

These developments with the Telephone Consumer Protection Act warrant close monitoring as courts reassess longstanding interpretations, particularly under Section 227(b), where FCC authority is more constrained. While agency guidance still holds persuasive value, legal teams should scrutinize whether current FCC rules align with statutory text and historical common-law meanings.