In the era of GenAI outbound calling–Claude for Cold Calls anyone?– understanding what constitutes express consent under the TCPA is more important than ever.
If consent to receive GenAI and other robocalls can be inferred merely by the provision of a phone number to a caller–directly or through an intermediary– we can expect a massive shift toward automated outbound calling practices in the coming months.
That’s a pretty big if, but one court has just taken a pretty big step toward providing the answer GenAI aficionados have been hoping for.
In Smith v. Examworks, 2026 WL 2823260 (D. M.D. Sept. 21, 2026) the Court denied certification of a TCPA class action involving prerecorded calls made by ExamWorks to schedule medical examinations of folks making claims for medical coverage to GEICO.
The denial rested on a number of grounds but among the central conclusions of the court were that express consent to receive calls can be implied by the conduct of providing a number to a caller and a consumer does not have to specify that robocalls may be permitted to provide “express consent.”
The background here is important to understand, however, as is the recognition that the court eventually did not rest its final certification denial on that holding– so it may just be dicta. Interesting dicta. But perhaps just dicta.
Here’s the background:
The Plaintiff shifted the class definition at the last moment– as they so often do– to focus on consumers who did not provide their numbers to ExamWorks.
The problem for Plaintiff, however, was that ExamWorks would send follow up calls after scheduling contact was made– and ExamWorks would seek phone numbers for the called parties during those contacts.
Thus some portion of the individuals that were to be within the class data Plaintiff’s expert provided actually had provided their number to ExamWorks.
This should have been easy enough to get around– the expert’s report was not the final word on the class size and a further analysis to remove individuals who had provided their number during the scheduling process could have been permitted.
But Plaintiff’s counsel either did not request that modification or the court would not grant it (unclear from the ruling.)
What was clear is Plaintiff’s counsel pivoted to a different position– a nuclear position.
Plaintiff argued that even if numbers were provided to EW during the scheduling process merely providing the number was not enough without agreeing to receive robocalls from EW.
And this argument gets right to the core of a central TCPA question moving out of the era of FCC deference.
What actually is express consent?
There are several pieces to this inquiry, but most pressing are: i) how can it be conveyed; and ii) what must be conveyed?
The Smith court appears to have answered these questions in broad fashion, implying that merely providing the number can, itself, convey express consent and–critically– that consent to be called is sufficient, not consent to be called in any specific manner.
In the court’s view:
The plain language of the TCPA is clear. The phrase “made with the prior express consent of the called party,” modifies “any call,” not “any call using any…prerecorded voice.” Id. Thus, it is the call that is consented to, not the use of the prerecorded voice.
Wow.
This is a really critical ruling– although the court ultimately finds the determination is not central to its holding so it might be viewed merely as dicta. Still, just fascinating.
I will note this determination seems to depart from the determination in Bradley v. Dentalplans.com, 2026 WL 788856 (D. MD. March 20, 2026) that suggested consent must mention the regulated technology used (there ATDS) but not telemarketing.
Fascinating stuff.
We will keep an eye on all of this.
And you should keep an eye on Ep 51 of the Deserve to Win podcast with GenAi CEO Tom Ryan of Bigly Sales!
Chat soon!
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