Fifth Circuit Find’s FCC’s “Prior Express Written Consent” Rule Exceeded Its Statutory Authority

The Fifth Circuit has rejected the FCC rule that has imposed a heightened “prior express written consent” requirement—a requirement found nowhere in the TCPA’s plain language—for more than a decade.  See Bradford v. Sovereign Pest Control of Texas, Inc., No. 24-20379, 2026 WL 520620, at *3 (5th Cir. Feb. 25, 2026). Citing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it found that the “prior express written consent” rule is unenforceable because the FCC had exceeded its statutory authority in enacting it.

From 1991 to 2012 — more than 20 years — it had been the FCC’s consistent position that consent can be “expressed” simply by providing one’s number — i.e., without a “written” or “signed” agreement. See, e.g., In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, ¶ 31 (1992) (“[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called…”). It was not until 2013 that the FCC reversed course, enacting a rule requiring that consent for certain communication not only be “express” but also that it be “written,” “bear[] the signature of the person called,” and include various and sundry disclosures the FCC deemed desirable. See 47 C.F.R. §§ 64.1200(f)(9).

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TCPA Case Tossed Because Defendant’s Unequivocal Records Trumped Plaintiff’s Equivocal Recollection

A Texas district court entered summary judgment against a plaintiff who had brought TCPA claims against a debt collector, finding no genuine issue of fact because the plaintiff’s recollection was equivocal and the defendant’s records were not. The case is Anderson v. Monterey Financial Services, LLC, No. 6:25-cv-00102, 2026 WL 318773 (E.D. Tex. Jan. 16, 2026), in which the magistrate judge recommended granting the motion. That report and recommendation was adopted by the district court at 2026 WL 316533 (E.D. Tex. Feb. 5, 2026).

The plaintiff had sued Monterey Financial Services, LLC, claiming it had violated the TCPA by calling his cellphone in an effort to collect a debt, including after he had instructed it to stop calling him. The case was before the court on Monterey’s motion for summary judgment.

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Florida Federal Court Stays Discovery Pending Decision on Whether Texts Qualify as Calls Under TCPA

A judge in the Southern District of Florida recently granted a defendant’s motion to stay discovery in a case involving alleged violations of the Telephone Consumer Protection Act (TCPA), pending resolution of the defendant’s motion to dismiss arguing that a text is not a “call” within the meaning of the TCPA. See McGonigle v. Pure Green Franchise Corp., 2026 WL 111338 (S.D. Fla. Jan. 15, 2026).

The court explained that “resolv[ing] the issue of whether § 227(c) [of the TCPA] includes a cause of action for text messages by exercising our ‘special competence in resolving statutory ambiguities’” is “a question of law that does not require discovery.” Id. at *2.

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Court Revisits Ascertainability, Reaffirms Class Certification Denial

Kate C. Goldberg contributed to writing this article.

In TCPA litigation, one of the most important goals of any defendant is to ensure that the class certification prerequisites are scrupulously applied and that no class is certified unless those requirements are clearly satisfied. A sprawling class action with potential aggregate statutory damages multiplied by hundreds or thousands of calls, texts or faxes takes what would be a modest individual case to a threat to the corporate defendant’s balance sheet. Thus, we are always eager to report on decisions examining the standards for class certification of TCPA claims.

One such recent case is Brian J. Lyngaas, DDS, PLLC v. IQVIA, Inc., which turned on the threshold issue of class ascertainability and whether transmission of a fax from a covered entity necessarily means that a class member received a fax. In Lyngaas, the plaintiff was a dental practice that claimed defendant IQVIA sent unsolicited fax advertisements inviting participation in a health care survey. Brian J. Lyngaas, D.D.S., P.L.L.C. v. IQVIA, Inc., No. 20-2370, 2025 WL 3565507 (E.D. Pa. Dec. 12, 2025). As the court noted, ascertainability requires 1) that the class be defined by reference to objective criteria and 2) that there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. Id. at *1-2.

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Class Certification Runs Out of Gas Over Consent Questions

The Northern District of Texas recently denied class certification in Rhonn Mitchell v. Toyota of Dallas, a putative class action arising from allegations that Toyota of Dallas (TOD) had violated the TCPA by sending marketing text messages to customers who had previously opted out of such communications. See 2025 WL 3013789 (N.D. Tex. Oct. 28, 2025). This case illustrates the teeth of the predominance inquiry and the importance of maintaining consent records, which are significant evidence even when held in varying formats.

Plaintiff Rhonn Mitchell alleged that, after purchasing a used car, he received repeated marketing texts from TOD despite alleging that he had opted out of receiving such messages. Alleging that TOD had sent over 16,000 texts to more than 1,500 customers after they had similarly opted out, Mitchell sought to certify both nationwide and Texas-only classes of consumers.

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Court Finds Political Texts Were Not Solicitations, Dismisses Do Not Call Claim

Each election cycle includes at least one cautionary tale about potential pitfalls of political calling. This one was no exception, as the Northern District of Illinois provided a helpful reminder that, depending on their content, political communications could be considered “solicitations” such that certain calling restrictions apply. See Evers v. CampaignSidekick, LLC, No. 24 CV 11067, 2025 WL 2896818 (N.D. Ill. Oct. 10, 2025).

The Plaintiff in Evers sued CampaignSidekick, a vendor that promotes voter outreach. Specifically, the Plaintiff asserted claims about: (1) using a prerecorded voice; and (2) calling numbers that were on the National DNC Registry.

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Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages

A judge in the Middle District of Florida recently dismissed Do-Not-Call claims under the TCPA, holding that “a text message is not a telephone call.” El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).

The court explained that “it is only th[r]ough the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages. … However, a District Court is not bound by the FCC’s interpretation of the TCPA.” Id. at 1.

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Third Circuit Reaffirms Narrow Interpretation of TCPA, Holds State Legislators’ Constituent Communications Outside Statute’s Reach

The Third Circuit’s recent decision in Perrong v. Bradford, 2025 WL 2825982 (3d Cir. 2025), serves as an important reminder that the TCPA does not apply to all automated telephone solicitations. In a case of first impression, the Court held that telephone solicitations made by state legislators when performing legitimate legislative functions for the public benefit fall outside the statute’s scope — underscoring that courts continue to interpret the TCPA narrowly and recognize meaningful limits on its application.

The plaintiff received five prerecorded calls sent by the Legislative Communications Office of the House Democratic Caucus on behalf of Pennsylvania Representative Matthew Bradford. After discovery, the district court denied Bradford’s motion for summary judgment, rejecting his argument that the TCPA did not apply to his conduct and his alternative claims of qualified and Eleventh Amendment immunity. The Third Circuit reviewed the case under the collateral order doctrine based on the immunity claims.

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Fourth Circuit Affirms Exclusion of Ascertainability Expert and Denial of Certification

The Fourth Circuit, on appeal from the Eastern District of Virginia, recently upheld the denial of class certification due to the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025).

The plaintiff allegedly received multiple prerecorded messages to his cell phone regarding an unpaid debt owed by a different consumer from whom the phone number had been reassigned. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The plaintiff eventually filed suit, asserting claims on behalf of himself and a nationwide class of unnamed consumers who had also received calls to reassigned numbers.

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Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages

A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).

In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).

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