Another major crack just formed in the FCC’s “prior express written consent” framework—and this time, it’s not just a one-off ruling.
In its recent analysis, Squire Patton Boggs highlights what it calls “Strike Two” against the FCC’s long-standing requirement that telemarketing robocalls require prior express written consent.
The underlying case, Bradley v. DentalPlans.com, is particularly important because it builds directly on the momentum from the Fifth Circuit’s decision in Bradford v. Sovereign Pest Control.
Here’s what changed:
After the Supreme Court’s decisions in Loper Bright and McLaughlin, courts are no longer required to defer to FCC interpretations of the TCPA. Instead, they must interpret the statute independently.
And when courts actually look at the statute?
They’re finding something very different from what the FCC imposed.
➡️ The TCPA requires “prior express consent”—not “prior express written consent”
➡️ The statute itself does not distinguish between oral and written consent
➡️ Courts are increasingly rejecting the FCC’s added “written” requirement as beyond its authority
In Bradley, that shift had real consequences.
The court reconsidered its earlier position, decertified the class, and reopened the analysis under the correct statutory standard—one that does not automatically require written consent.
This is now part of a broader trend:
Courts are moving away from decades of FCC-driven interpretation and returning to the plain language of the TCPA.
But here’s the catch—this doesn’t simplify compliance.
It complicates it.
Because now:
• Different courts may apply different consent standards
• FCC rules are no longer automatically controlling
• Plaintiffs can no longer rely on “no written consent” as a shortcut to liability
That’s exactly where most compliance programs break down.
Static rules don’t work in a shifting legal environment.
You need real-time compliance intelligence—the ability to identify risk patterns, plaintiff behavior, and exposure signals before they turn into litigation.
Because in today’s TCPA landscape, the risk isn’t just what the rule says—
…it’s how the next court decides to interpret it.
#TCPA #FCC #TelemarketingCompliance #Robocalls #LegalTech #Compliance #ClassAction #ConsumerProtection #MarketingCompliance #TCPALitigatorList
