MASSIVE RULING: Maryland District Court Joins Fifth Circuit in Holding TCPA Does Not Require Written Consent as Kay FCC-Created Robocall Protections Begin to Erode

Another absolutely massive TCPA ruling here– and as usual Troutman Amin, LLP is the first to bring you news of it.

You will all recall the Fifth Circuit Court of Appeals recently held the FCC’s TCPA express written consent provision is invalid— the TCPA requires only “express consent” and the FCC lacked authority to add an additional written requirement for telemarketing calls.

Well a district court in Maryland just followed that ruling–concluding the FCC’s express written consent provisions are invalid– and went even further in deciding “express consent” does not require mention of telemarketing calls at all.

In Bradley v. Dentalplans.com, 2026 WL 788856 (D. MD. March 20, 2026) the court granted a motion by the defendant to reconsider a previous order denying summary judgment following the decisions in LoperBright and McKesson.

In Bradley, the Plaintiff had made an inbound call to DentalPlans intending to sign up for a dental savings plan. The representative to whom Plaintiff spoke confirmed Plaintiff’s phone number and then asked Plaintiff if she consented to DentalPlans “contact[ing] [her] with an automatic dialing system or a prerecorded message.” Plaintiff assented.

In analyzing whether the consent provided by Plaintiff was sufficient the court first re-evaluated its earlier determination express written consent was required to comply with the TCPA in the context of telemarketing robocalls.

Reviewing recent case law from the Fourth, Fifth and Tenth circuit the Court concluded it was bound to require the Fourth Circuit’s strict delegation requirements in assessing the FCC’s authority to interpret the TCPA’s anti-robocall provisions:

Reading IMC, Bradford, and the Fourth Circuit’s guidance in Kokinda together, if Congress delegated to the FCC authority to
interpret the TCPA—a delegation the Eleventh and Fifth Circuits somehow overlooked—then the FCC’s “prior express written
consent” requirement may stand.

It concluded no such delegation was expressly made by Congress. 

It then went on to apply the Tenth Circuit’s reasoning that the statutory language alone was not sufficient to permit the FCC’s rule requiring WRITTEN consent as “express consent” is consent that is “directly given, either viva voce or in writing. It is positive, direct, unequivocal
consent, requiring no inference or implication to supply its meaning.” In other words, oral consent is fine.

But that begged a second question– one that has lacked an answer in caselaw for dozens of years now: how specific does “express consent” need to be in connection with the TCPA?

Most importantly– does express consent need to mention telemarketing and/or the use of regulated technology?

Looking at the language of the statute the Bradley court determined express consent must mention regulated technology usage (i.e. autodialers or prerecorded voice) but does not need to mention telemarketing because the content distinction was created by the FCC and not congress:

The FCC, not Congress, distinguished between telemarketing and informational robocalls and did so in the context of which standard governs the calls at issue—prior express consent or prior express written consent.

Wow!

So there you go– an INCREDIBY helpful ruling.

It should be noted the Fourth Circuit has particularly robust authority on the delegation requirements– so not every district court may reach the same conclusion. But you will notice the Czar, once again, called this issue.

As before the case law is still in development here and just because one out-of-circuit district court has followed the Tenth Circuit’s “no written consent” interpretation does not mean that other courts will do the same.

Still, although two cases may not indicate a trend but they do indicate reasonable judges are willing to drop the written consent rule that has been the bedrock assumption for TCPA practitioners for 13 years–something that would have been unthinkable prior to McKesson.

We will obviously keep an eye on this.

And these developments obviously make attending my TWO HOUR TCPA session at Law Conference of Champions in less than 45 days more important than ever before. I will answer the question– can you deploy GenAI voice outreach without written consent? The answer may surprise you. We will have to get DMS’ Evan King to weigh on this issue as well.

Will be truly magical.

Chat soon.