When we wrote about McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), last July, we said it might lead to circuit splits. Well, the Fifth Circuit just cracked open a doozy. In what is welcome news to companies defending TCPA cases, the Fifth Circuit held last week that “contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or prerecorded call” under the TCPA. Bradford v. Sovereign Pest Control of TX, Inc., 2026 WL 520620, at *2 (5th Cir. Feb. 25, 2026) (emphasis added).
This undoubtedly disappoints those who have spent the last decade-plus treating FCC pronouncements on the TCPA as gospel – particularly TCPA plaintiffs’ lawyers who have filed cases all over the country based on the lack of prior express written consent. It’s certainly big news. But is it really a surprise?
For decades, we’ve seen regulatory overreach in many areas of the law that aggressively expanded the scope of what was actually covered by the statutory language. The FCC’s treatment of the TCPA was a prime example. Among other things, FCC overreach is how it became undisputed law that a text message is a “call” under the TCPA, even though text messages didn’t even exist when the TCPA was passed in 1992. Congress certainly never considered the issue, but the FCC made it part of the regulations and courts held that the FCC was entitled to deference.
Still, not everyone took that for granted. Some in the defense bar continued to look for ways to challenge FCC regulations, including by challenging regulations directly to the circuit courts and challenging the underlying notion of administrative deference. But it was a difficult slog thanks to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the Hobbs Act, 28 U.S.C. § 2341, et seq., which suggested that district courts lacked the power to interpret or override FCC regulations. But the tide is turning. First, in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2257 (2024), the Supreme Court wiped out Chevron deference, holding that courts, rather than regulators in the executive branch, have the sole prerogative to “say what the law is.” Then, last June, the court in McLaughlin held that the “Hobbs Act does not preclude district courts” from assessing an agency’s interpretation of a relevant statute. 606 U.S. at 152. The deference dam has officially broken.
And that takes us back to Bradford. Citing McLaughlin, the Fifth Circuit held that “courts must interpret the meaning of Congress’s enacted text according to ordinary principles of statutory interpretation, without deference to an agency’s reading.” 2026 WL 520620, at *2 (emphasis added). The court rejected the notion that the FCC could impose a requirement inconsistent with the statute and held that “‘[p]rior express consent’ encompasses both oral and written consent for both telemarketing and informational calls. Congress enacted the TCPA, ‘express consent’ meant consent that is ‘directly given, either via voice or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.’” Id. (citing Black’s Law Dictionary (6th ed. 1990)).
Thus now, after many years of “certainty,” we have a circuit split on the issue of whether prior express written consent is required under the TCPA. Those watching this blog closely might have thought this was coming, and the Fifth Circuit is now the first circuit to join the fray in the post-McLaughlin era. But it’s hardly the first court to leverage McLaughlin to reject once “settled” TCPA regulatory pronouncements. For example, at least three district courts have now found that a text message is not a call. See Jones v. Blackstone Medical Services, LLC, 792 F. Supp. 3d 894, 900 (C.D. Ill. 2025); Davis v. CVS Pharmacy, Inc., 2025 WL 2491195, at *1 (N.D. Fla. Aug. 26, 2025); Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *1 (M.D. Fla. Oct. 24, 2025). As TCPA defense lawyers, we’re pleased some reasoning is now being restored and regulatory overreach is being curbed.
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