By: Jeffrey Backman, Esq. and Roy Taub, Esq.
A recent decision from the District of Maryland reinforces that the TCPA’s “prior express consent” standard does not require a written agreement—and that oral consent can suffice for calls made with an auto dialer or a prerecorded voice. Granting reconsideration and decertifying a previously certified class, the court held that, after Loper Bright and Mclaughlin, the FCC may not add a “written” requirement to the TCPA’s plain text; Congress required only “prior express consent,” not “prior express written consent.” Applying that interpretation, the court concluded the plaintiff had orally agreed during a 2018 enrollment call to receive automated or prerecorded calls “to keep [her] updated with any plan information,” which satisfied the TCPA’s consent requirement as a matter of law and warranted judgment for the defendant on the TCPA claim.
This ruling aligns with the Fifth Circuit’s recent approach. Citing Bradford v. Sovereign Pest Control of TX, Inc., the court noted that the Fifth Circuit likewise read the statute to permit either written or oral consent and found no textual basis to require “prior express written consent” for telemarketing calls.
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