Maryland District Court Rejects FCC “Prior Express Written Consent” Requirement Under TCPA

In yet another setback for the Federal Communications Commission’s (“FCC”) prior express written consent requirement applicable to robocalls and robotexts (i.e., autodialed and artificial/pre-recorded voice calls and autodialed texts), on March 20, 2026 in Bradley v. Dentalplans.com et al., the U.S. District Court for the District of Maryland held that written consent to receive telemarketing calls is not required under the TCPA, reversing a decision to certify a class of consumers against a dental plan marketer.  Guided by recent decisions in the Fifth and Eleventh Circuits (and guidance from the Fourth Circuit on how district courts in the circuit should evaluate agency interpretation of a statute in conjunction with Congressional delegations of authority), the District Court was skeptical that Congress had authorized the FCC’s heightened form of consent given the language of the TCPA. 

As we discussed in our recent blog post, this decision comes on the heals of the Fifth Circuit striking down the prior express written consent rule in Bradford v. Sovereign Pest Control of TX, Inc., finding that the TCPA permits either written or oral consent for autodialed or pre-recorded/artificial voice telemarketing calls and making clear that courts will now be applying their own judgment in interpreting the TCPA in private class action litigation, following the Supreme Courts direction in Loper Bright and McLaughlin.  The Maryland District Court case potentially sets up review of the prior express written consent rule in the Fourth Circuit.  And as we noted in our prior alert on the Eleventh Circuit’s Insurance Marketing Coalition Limited v. FCC the fate of the prior express written consent rule could very well be in the crosshairs in the Eleventh Circuit, as well.  There, the Eleventh Circuit vacated on similar grounds as the Fifth Circuit ruling on the prior express written consent rule, two heightened FCC consent requirements raised in a direct challenge to the adoption of those particular rules, significantly criticizing but leaving intact the prior express written consent rule, which was not directly before the court. 

An open question is at what point will the Commission, whether on its own motion or on petition from an interested party, revisit the continued validity of the prior express consent rule, given court decisions striking it down following the Supreme Court’s Loper Bright and McLaughlin one-two punch, as inconsistent with the text of the TCPA.