What’s at Stake
Whether the Federal Communications Commission can continue to protect consumers under the Telephone Consumer Protect Act by requiring telemarketers to show they actually got consumers’ consent to send robocalls by documenting it in writing.
Summary
Deborah Bradley bought a one-year dental savings plan from DentalPlans.com that would supposedly help her save on dental procedures. She agreed to prerecorded calls after the company told her they would be to keep her updated about her one-year subscription. A year later, frustrated with a subscription that proved to be so worthless she never used it, she chose to let her subscription lapse. That should have ended the calls. Instead, DentalPlans began calling her more than ever.
This is the abuse Congress enacted the Telephone Consumer Protection Act (“TCPA”) to stop: unwanted, automated solicitations pressing consumers to buy products they never asked for. Congress prohibited such calls absent the consumer’s “prior express consent,” 47 U.S.C. § 227(b)(1)(A). But it didn’t stop there. Recognizing that a bare consent requirement means little without a means to enforce it, Congress also directed the Federal Communications Commission to “prescribe regulations to implement” that requirement. The FCC — which fields tens of thousands of robocall complaints and had watched its earlier, more permissive rules fail to stem them —did just that. It put in place a carefully calibrated set of procedures that required telemarketers to actually obtain and document a consumer’s consent by, among other things, putting it in writing. And it kept that requirement flexible. Conscious of how modern technology has evolved, it told telemarketers that in writing did not always mean written in the traditional sense: email, text, a keypress, or even a voice recording could sometimes do.
In Loper Bright, the Supreme Court reaffirmed that Congress could delegate discretionary authority to an agency like the FCC to implement statutes in this way. But the district court invalidated the FCC’s written-consent rule anyway. According to the district court, because Congress did not specify whether prior express consent could be oral or written, the FCC could not either. But that turns Congress’s delegation to the FCC on its head. It is precisely because Congress did not specify how consent should be obtained that the FCC, using its discretionary authority and reasoned experience, could do so.
Setting aside its decision on the FCC’s written-consent rule, the district court erred for a second, independent reason. It held that Ms. Bradley consented to DentalPlans’s winback calls because once she consented toreceive some robocalls, while her plan was ongoing, she had consented to receive any robocall, even after her plan had expired. But consent has never worked that way, under the TCPA or the common-law principles it incorporates. Consent is specific to the context in which it is given. Here, Ms. Bradley, like thousands of former DentalPlans customers, consented to receive information from DentalPlans about her plan, for as long as she held it — not to a sales pitch for a new plan after she had terminated her relationship with DentalPlans.
As the Fourth Circuit recently put it, “it would be dispiriting beyond belief if courts defeated Congress’ obvious attempt to vindicate the public interest with interpretations that ignored the purpose, text, and structure of this Act at the behest of those whose abusive practices the legislative branch had meant to curb.” Because the court below, at the behest of one such telemarketer, ignored what the TCPA actually requires, we asked the Fourth Circuit to reverse.
Core Legal Questions
- In the TCPA, Congress directed the FCC to “prescribe regulations to implement” the Act’s requirement that consumers not receive robocalls without their “prior express consent.” 47 U.S.C. § 227(b)(1)(A), (b)(2). In response, the FCC required telemarketers to demonstrate they had obtained consumers’ express consent by, among other things, documenting it in writing. 47 C.F.R. § 64.1200(a)(2) (2026). Did the FCC reasonably act within its delegated authority by implementing such a written-consent requirement?
- Whether a consumer’s limited consent to receive informational robocalls about a subscription she purchased constitutes prior express consent, under the TCPA, to receive telemarketing robocalls after that subscription ends?