Category - "Prior Express Consent"

District Court Limits the Impact of a “Stop” Text

The Northern District of Illinois recently validated a company’s narrow interpretation for the scope of communications a party opts out of when it revokes consent under 47 C.F.R. § 64.1200(d). In Stamper v. Manus-Northwestern Oral Health Center, Ltd., the court granted a defendant’s motion to dismiss confirming that the plaintiff did not adequately revoke consent to receive all marketing communications from the defendant after replying “stop” to one message instead of “STOPALL” as instructed to cease all communications. 2025 WL 2044093 (N.D. Ill. July 17, 2025). For companies with multipronged or multichannel communication streams, this decision provides validation that an opt-out from one category of message or specific campaign need not be read as a bar to all messages.

In Stamper, the plaintiff alleged they had “received texts advertising [defendant]’s services on at least a monthly basis from September 2022 to January 2023, despite repeatedly responding “stop” in an attempt to unsubscribe in the manner the messages instructed.” Id. at 1. The texts included notifications of open appointments, recall messages and reminders that a person was due for an appointment. Some of the texts were addressed to different individuals for whom the plaintiff had provided their number as the point of contact.

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FCC Ends Quest to Amend its Definition of “Prior Consent” in the Wake of Eleventh Circuit Ruling

On July 14, 2025, the FCC issued an Order halting a proposed amendment to 47 CFR § 64.1200(f)(9) that would have narrowed the scope of communications that may be sent after a caller gives “prior express consent.” The FCC’s Order follows the recent decision in Insurance Marketing Coalition, Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025), which vacated a change to that rule adopted by an FCC Order issued in late 2023.

Prior to the 2023 FCC Order, the phrase “prior express consent” under this regulation had the same meaning as the common law concept of consent. Ins. Mktg. Coal., 127 F.4th at 313. Specifically, “permission that [was] clearly and unmistakably granted by actions or words, oral or written” before the marketing call was received. Id. (internal citations omitted)

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Texas Federal Court Finds Prerecorded Calls to Schedule Pest Inspections Were Informational, Not Telemarketing

A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.

In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.

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FCC Acts on Pending Reconsideration Petitions of its 2020 TCPA Exemptions Order

The Telephone Consumer Protection Act of 1991 (TCPA) restricts many types of calls to residential and wireless telephone numbers if they are made without the prior express consent of the called party or a statutory exemption applies, but the statute authorizes the FCC to exempt certain calls from these restrictions.  In 2020, the FCC in its TCPA Exemptions Order adopted measures to implement the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).  The TRACED Act required that the FCC ensure that any exemption to TCPA prior express consent that the FCC grants under section 227(b)(2)(B) or (C) of the Communications Act, allowing callers to make artificial voice, prerecorded voice, or autodialed calls without prior consent, include certain conditions.  Specifically section 8(a) of the TRACED Act requires that any exemption contain requirements with respect to:  “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.”  The FCC in 2020 determined it would limit the number of exempted calls that can be made to residential phone lines; require that callers making exempt calls allow consumers to opt out of receiving future exempt calls; and codify existing FCC exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers.

Specifically, the FCC limited the number of exempted calls that can be made to a residential line to three artificial or prerecorded voice calls within any consecutive 30-day period for three types of exemptions (for non-commercial calls, commercial calls that do not constitute telemarketing, and calls by tax-exempt nonprofit organizations).  For exempted HIPAA-related calls, the FCC amended its rules to limit the number of calls that can be made to a residential line to one artificial or prerecorded voice call per day, up to a maximum of three artificial or prerecorded voice calls per week.  This healthcare call limitation is the same as that already imposed on healthcare calls to wireless numbers.

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FCC Seeks Comment on HHS/CMS Request for Certainty About Communications Critical to Federal and State Health Insurance Programs Post-Pandemic

Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a short cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.

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The Losses Mount for a Serial TCPA Plaintiff

In an ever-growing string of losses, the Seventh Circuit affirmed the Northern District of Indiana in denying class certification to serial TCPA plaintiff Gorss Motels, Inc. in Gorss Motels, Inc. v. Brigadoon Fitness, Inc., — F.4th —, 2022 WL 872639 (7th Cir. 2022).

The fact pattern in the present matter is consistent with the other cases Gorss Motels has filed, and the basic fact pattern can be found here. In the present case, Gorss Motels sued a franchisor-approved vendor, Brigadoon Fitness, Inc., for sending a fax advertisement for deals on fitness equipment. Gorss Motels was denied certification for a class of all recipients of this fax, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 331 F.R.D. 335 (N.D. Ind. 2019), which was denied again on reconsideration, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., No. 1:16-CV-330-HAB, 2019 WL 5692168 (N.D. Ind. Nov. 4, 2019).

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“Pretext” Theory Could Turn Calls Regarding Free Health Care Services into Prohibited Solicitations, District of New Jersey Holds

The District of New Jersey recently endorsed the view that calls regarding the availability of free services may plausibly qualify, at the pleadings stage, as “telephone solicitations,” and as such be subject to the Do Not Call prohibition, where the calls are part of a larger marketing program for the defendant’s services. It also held, as the FCC has ruled, that the FCC’s exemption for calls that deliver a “health care message,” from a HIPAA-covered entity or its business associates, treats the calls differently based on whether the calls are delivered to a cell phone or a residential landline. Calls from such entities about health care, when made to wireless numbers, are exempt only from the requirement for written consent that applies to telemarketing calls. Unlike health care calls to residential landlines, these calls are not exempt from the TCPA’s general “prior express consent” requirement for prerecorded and autodialed phone calls, the court held.

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Some Clinical Trial Calls Now Eligible for the FCC’s Revised TCPA Exemption

The TRACED Act’s December 30, 2020 deadline was not the end of the FCC’s recent series of actions to bring more clarity to certain forms of TCPA exemptions. Most recently, on January 15, 2021, the FCC issued a Declaratory Ruling “clarify[ing] that a call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is not subject to the TCPA’s restrictions on prerecorded calls.” Instead, the FCC stated that these calls are eligible for exemption from the TCPA’s prior express written consent requirement as other calls to a residence that do not constitute telemarketing.

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New Year, New Rules: FCC Modifies Existing TCPA Exemptions, Adopts New “Call Blocking” Requirements, and Clarifies TCPA Application Over Soundboard Technology

Some welcome the New Year with new goals and new plans while others – the FCC, in particular, welcomes the New Year by wrapping up TCPA rulemakings and issuing other rulings. As expected, a number of TRACED Act items were included in orders issued in late December 2020. As we previewed, the FCC amended nine existing TCPA exemptions, imposing additional restrictions on pre-recorded/artificial voice calls placed to residential lines even for informational calling, and adopted new redress requirements on and safe harbor protections for carriers engaging in network-based call blocking. The FCC also denied two petitions for declaratory rulings, clarifying that “soundboard callers use a prerecorded voice to deliver a message” and that as a result, these calls made using soundboards are subject to TCPA restrictions. In light of these changes, we encourage business callers to carefully assess how they affect any existing calling protocols and compliance practices.

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FCC Affirms that Health Plans and Providers Cannot Offer Post-Call Opt-Out in Lieu of “Prior Express Consent”

The FCC’s Consumer and Governmental Affairs Bureau last week issued a declaratory ruling resolving a long-pending Petition on the question of whether certain healthcare-related calls, given their significance and value for consumers, should be entirely exempted from the TCPA’s prior express consent requirement, or at least exempted as long as consumers are allowed to opt out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or expand the scope of exemptions already in place for certain types of health-care-related calls.

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