TCPA事先明确书面同意要求的“第二次打击”

US – March 30, 2026 Is this a signal of more such things to come? Perhaps, as a second court – the Federal DistrictCourt in Maryland inDeborah Bradley v. DentalPlans.com et al– has ruled that “Congress hasrequired only prior express consent“ to receive automated and prerecorded telemarketingcalls under the Telephone Consumer Protection Act (TCPA). No prior express written consent FCC could not impose– The court considered two appellatecourt decisions by the 11th Circuit (Insurance Marketing Background Facts Coalition Ltd v. FCC) and 5th Circuit (Bradford v. SovereignPest Control of TX, Inc.). The former found that the Congress’ Deborah Bradley signed up for a Cigna dental plan througha telephone call with DentalPlans.com. During the call sheorally agreed to receive automated and prerecorded calls,ostensibly to “keep her updated with any plan information.”Later after indicating that she did not want the plan to auto-renew, she received prerecorded calls telling her that hermembership would expire soon and she could renew herplan; she ignored those calls and her plan expired. However, delegation of authority to the FCC did not include the ability to “interpret” the TCPA’s prior express standard as the agencyhad done – “Rather than respecting the line that Congressdrew, the FCC stepped right over it.” The latter concluded that“contrary to the FCC’s regulation, Congress permits eitherwritten or oral consent for any auto-dialed or prerecorded call,” Requisite consent was given– The court noted thatCongress had not, for consent purpose, made a distinctionbetween telemarketing and informational calls. It was theFCC that did so, in the context of deciding which standardgoverns the calls at issue, prior express consent or priorexpress written consent. The court, however, looking at The court initially determined that the “win-back” calls weretelemarketing, denied DentalPlans summary judgment motionand certified a class. But DentalPlans asked the court toreconsider and decertify the class, arguing that the original determination was no longer permissible after the Supreme Court decisions inLoper Bright Enters. v Raimondoand The Court’s Analysis and Rulings Implications Going Forward? What are the implications of this decision going TheLoper BrightandMcLaughlindecisions both addressed the role of the courts in assessing whether an agency hasacted within its statutory authority. As ultimately held in thelatter,now“District Courts are not bound by the agency’sinterpretation” of the statute, but must “independently There are now two specific precedents in different federalcircuits on this issue. Certainly other courts in otherjurisdictions can pick up on this analysis when it is presentedto them. Defendants in TCPA class action cases have a tool to Armed with that framework, the court addressed two centralissues: (1) whether the FCC could impose an additionalwriting requirement to the TCPA’s “prior express consent”and (2) in the end did Ms. Bradley provide prior expressconsent. The court answered “no” to the first and “yes” to These decisions may instigate other challenges to FCCgenerated “interpretations” under the TCPA. Further followingon the guidance to district courts inLoperandMcLaughlin,other FCC-generated interpretations and regulations can beattacked. TheBradleycourt specifically noted “[t]here may be These decisions could impact the FCC’s own formulation ofits regulations in interpreting and applying the components ofthe TCPA going forward. They might give the FCC pause whenit is presented with the option of engrafting a requirement We expect there will be additional progeny ofLoperandMcLaughlinfor the application of the TCPA, not only withrespect to consent issues. We will be monitoring closely. Contact Finally, theBradleyCourt also clearly implied if there wasto be a prior express written consent requirement, it wasfor Congress not the FCC to impose such a rule – “It is forCongress to respond to the issues presented in this caseand to address whether the TCPA, as written, adequately Paul BesozziSenior Partner, Washington DCT +1 202 457 5292E paul.besozzi@squirepb.com