A federal appeals court’s recent holding that oral consent — rather than written consent — for pre-recorded telemarketing calls satisfies the Telephone Consumer Protection Act (TCPA) demonstrates how U.S. Supreme Court decisions that no longer give deference to agencies’ legal interpretations may loosen restrictions on the industry.
However, because the ruling applies only in states covered by the U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi and Texas), companies should continue to obtain written consent for telemarketing calls in other jurisdictions.
Statutory Text Over FCC Regulations
The Fifth Circuit’s analysis in Bradford v. Sovereign Pest Control of TX, Inc., focused on the plain text of the TCPA. The statute prohibits pre-recorded calls to cell phones absent “the prior express consent of the called party.” Under Federal Communications Commission (FCC) regulations, however, pre-recorded telemarketing calls require prior express consent to be written, while “informational calls” may be made with oral consent.
Applying ordinary principles of statutory interpretation — and citing the Supreme Court’s recent decisions in Loper Bright Enterprises v. Raimondo and McLaughlin Chiropractic Associates, Inc. v. McKesson Corp. — the Fifth Circuit declined to defer to the FCC’s distinction. The court looked to the plain meaning of “express consent” at the time Congress enacted the TCPA, noting that Black’s Law Dictionary defined it as consent that is “directly given, either viva voce or in writing.” The Latin term “viva voce” means “with the living voice; by word of mouth.”
Based on this textual analysis, the Fifth Circuit held that “the statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent.”
Key Takeaways for Companies
The decision is another example of how the Supreme Court’s Loper Bright decision, which eliminated Chevron deference to agency interpretations, and the McKesson Corp. decision, which ruled that district courts are not bound by FCC interpretations, may affect TCPA enforcement. Courts are increasingly referring to the TCPA’s plain language rather than deferring to FCC regulations, which impose additional requirements beyond the statutory text. As is the case in the context of other TCPA provisions, this decision could create divergent interpretations of the TCPA’s consent requirements for telemarketing calls across circuits.
Yet given that this ruling is currently limited to the Fifth Circuit, businesses operating in multiple jurisdictions still should obtain prior express written consent for telemarketing calls in jurisdictions outside the Fifth Circuit. Companies should also monitor developments in other circuits and adhere to state law mini-TCPA laws.
McGuireWoods continues to monitor developments in this area. For more information, contact the authors or a member of the Government Investigations & White Collar Litigation Practice Group.