FCC 'Deletes' TCPA Regulations Following Supreme Court and Eleventh Circuit Rulings
In the last month, we have gained additional insight into the future of the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) regulation and how class action litigation might be shaped by federal court deference to agency interpretations. But first, some background:
Background: FCC/TCPA Litigation
Earlier this year, we reported on the Eleventh Circuit’s decision to vacate the FCC's One-to-One Consent Rule on the eve of its effective date, and provided an update on a subsequent effort by potential intervenors to seek reconsideration of the Eleventh Circuit decision while the FCC extended by one year the effective date of certain parts of the TCPA Consent Revocation Rule.
For our prior guidance concerning these developments, see our December 2023, January 2025 and April 2025 client alerts.
As we previously noted, these decisions raised critical questions following the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, including whether there are differences in the degree of deference a federal court should grant to agency decisions both in rulemaking and abandoning previously promulgated rules. They also called into question the future of TCPA litigation in the event that previously settled issues concerning statutory construction based on agency interpretations would be cast into question and subject to increased class action scrutiny.
Recent Developments on FCC Regulation and Federal Court Deference for Agency Interpretations of the TCPA
First, at the Eleventh Circuit, the court denied as untimely motions to intervene filed by consumers to seek reconsideration of the January decision and revive the One-to-One Consent Rule. Attorneys general from more than half of U.S. states and the District of Columbia have also asked the Eleventh Circuit to reconsider its prior ruling, with the court yet to issue its decision on that petition.
Second, the Supreme Court’s June 20, 2025 decision in McLaughlin Chiropractic v. McKesson Corporation is a major new development, because the Court in a 6-3 decision held that the Hobbs Act did not require district courts to defer to the FCC’s interpretation of the TCPA.
The Hobbs Act (also known as the Administrative Order Review Act) grants "exclusive jurisdiction" to the federal courts of appeals to "determine the validity" of most FCC orders and rules. The Ninth Circuit determined that the Hobbs Act also limited judicial review of the FCC’s legal interpretations of the TCPA.
In reversing, the Supreme Court explained: “The Hobbs Act does not preclude district courts from independently assessing whether an agency’s interpretation of the relevant statute is correct,” which is to be done “under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” This ruling opens the door to revisit numerous FCC orders issued over the past three decades and litigate interpretations that were previously not subject to review by district courts.
Third, by an order dated July 14, 2025, the FCC eliminated rules that it viewed as “new and burdensome,” including the One-to-One Consent Rule in order to conform to the Eleventh Circuit’s January decision. The order results from FCC Chair Brendan Carr’s “Delete, Delete, Delete” proceeding that directs the agency “to identify and eliminate” FCC rules that are “unnecessary regulatory burdens."
TCPA Litigation Likely to Increase Amid Growing Uncertainty
Following these new developments, litigants face a new reality in which the FCC’s interpretation of the TCPA will not be binding on federal district courts, even when within the scope of the Hobbs Act.
While TCPA dockets have already been extremely active this year, we expect to see a significant increase in litigation as plaintiffs urge federal courts to endorse novel theories and reconsider the boundaries of the TCPA, including as they relate to prior express consent, the revocation of consent, the bounds of the "established business relationship" exception, whether cell phones are eligible for the Do-Not-Call Registry, and what technologies qualify as an “automatic telephone dialing system.”
In this environment of increased uncertainty, organizations should anticipate an uptick in TCPA litigation and work closely with outside counsel to evaluate their programs and enhance compliance safeguards.
We will continue to monitor developments relating to the TCPA’s consent requirements and on future FCC actions and litigation regarding the TCPA. If you have questions on the TCPA, or any other concern related to FCC compliance in your organization, please contact Melanie Conroy, Kyle Glover, Kasey Boucher Pierter, or Ariel Pardee.