The TCPA's Written Consent Requirement Is Crumbling. A Maryland Court Just Accelerated the Collapse.

For more than a decade, the conventional wisdom among telemarketers, compliance officers, and the lawyers who advise them has been simple: if you want to send automated marketing calls or texts, get written consent first. Not verbal consent. Not implied consent. Written consent.

That rule came from the Federal Communications Commission, not from Congress, and the distinction is about to matter a great deal. On March 20, 2026, a federal district court in Maryland became the latest court to hold that the Telephone Consumer Protection Act does not actually require written consent for prerecorded telemarketing calls. The case is Bradley v. DentalPlans.com, 2026 WL 788856 (D. Md. Mar. 20, 2026), and it adds another crack to a foundation that is rapidly giving way.

If you run an e-commerce business, operate a call center, or use text marketing to reach customers, this ruling matters. Let me explain why.

The Background: How the FCC Built a Rule Congress Never Wrote

The TCPA was enacted in 1991 to address the growing nuisance of robocalls. The statute prohibits making certain automated or prerecorded calls to consumers without their "prior express consent." For years, that was understood to mean any form of consent, including verbal. If a customer said "yes, you can call me," that was enough.

Then, in 2012, the FCC issued a rule that changed the game. The Commission declared that for telemarketing calls, consent had to be "prior express written consent," meaning a signed written agreement or its electronic equivalent containing specific disclosures. The rule did not come from any amendment to the TCPA. Congress did not pass a new law. The FCC simply decided that the word "consent" in the statute meant "written consent" when telemarketing was involved.

For over a decade, that interpretation went largely unchallenged. Companies built their compliance programs around it. Plaintiffs' lawyers built their practices around suing companies that did not have it. An entire cottage industry of TCPA litigation was born, fueled by the gap between what businesses thought they had (verbal consent from their customers) and what the FCC said they needed (a signed writing).

Then the Supreme Court decided Loper Bright Enterprises v. Raimondo in 2024, and the whole edifice started to wobble.

Loper Bright Changes Everything

Loper Bright eliminated the Chevron deference doctrine, which for 40 years had required courts to defer to a federal agency's reasonable interpretation of an ambiguous statute. Under Chevron, if the TCPA was ambiguous about what kind of consent was required, and the FCC reasonably interpreted it to mean written consent, courts were supposed to go along with that interpretation.

After Loper Bright, courts are no longer required to defer. They must independently interpret the statute using ordinary principles of statutory construction. And when courts have done that with the TCPA, they have repeatedly concluded that Congress said "consent," not "written consent," and the FCC had no authority to add a word that Congress left out.

The Eleventh Circuit was among the first to apply this reasoning. In Insurance Marketing Coalition v. FCC, decided in January 2025, the court vacated two FCC-imposed consent requirements, finding that the Commission had exceeded its statutory authority. The Fifth Circuit followed in February 2026 with Bradford v. Sovereign Pest Control, holding that the TCPA does not require prior express written consent for automated telemarketing calls.

Bradley v. DentalPlans.com: Maryland Joins the Trend

The facts of Bradley are almost comically ordinary. In 2018, Deborah Bradley signed up for a dental savings plan from DentalPlans.com. During the sign-up process, she allegedly gave oral consent to receive prerecorded calls from the company. She did not provide written consent. When her plan expired, DentalPlans kept calling her with prerecorded messages urging her to renew.

Bradley sued under the TCPA. A class was certified. The case proceeded.

Then the court reconsidered, and it did so through the lens of Loper Bright. The court examined the TCPA's text and concluded that the statute's general consent requirement does not permit the FCC to impose a heightened, more specific written-consent requirement. The court granted reconsideration, decertified the class, and sided with the growing number of courts rejecting the FCC's 2012 rule.

The reasoning is consistent with the Fifth and Eleventh Circuit decisions. The TCPA says "prior express consent." It does not say "prior express written consent." The FCC added "written" on its own. After Loper Bright, courts are no longer obligated to pretend that the FCC's gloss on the statute carries the force of law.

What This Means for Businesses (and Why You Should Not Get Too Comfortable)

If you are a business that relies on phone or text marketing, you might be tempted to read these rulings as a green light to ditch your written consent procedures. I would not do that. Here is why.

First, Bradley is a district court opinion. It is persuasive, but it is not binding outside of the District of Maryland. Hell, its not even binding by other courts in the District of Maryland. The Fifth Circuit's Bradford decision and the Eleventh Circuit's IMC decision are binding only within their respective circuits. If you operate nationally, you are still potentially subject to the written consent requirement in circuits that have not yet addressed the question.

Second, state laws are a separate problem. Many states have their own telemarketing statutes, and some of them independently require written consent. A federal court ruling about the scope of FCC authority under the TCPA does nothing to change what California, Illinois, or any other state requires under its own laws.

Third, the FCC has not formally withdrawn its 2012 rule. It is being chipped away in court, but it is still on the books. Until the FCC acts or the Supreme Court takes up the issue, there is at least an argument that the rule remains enforceable in jurisdictions where it has not been challenged.

The Bigger Picture: TCPA Litigation After Loper Bright

Bradley is just one piece of a larger story. The post-Loper Bright landscape is reshaping TCPA litigation from the ground up. For years, the FCC's interpretive rules were treated as essentially binding. Plaintiffs relied on them, courts deferred to them, and defendants structured their compliance programs around them. Now, each of those FCC-created requirements is a potential target.

The one-to-one consent rule, which requires that consent be given specifically for each seller rather than broadly for a category of sellers, has already been vacated by the Eleventh Circuit. The written consent requirement is following the same trajectory. Other FCC rules regarding the definition of an autodialer, the scope of the reassigned numbers database, and the treatment of revoked consent are all vulnerable to the same Loper Bright analysis.

For plaintiffs' attorneys who have built lucrative practices on TCPA class actions, this is an existential problem. The easier it is for a defendant to show that verbal consent was sufficient, the harder it becomes to certify a class and extract a settlement. For businesses, it is a partial reprieve, but only partial. The TCPA itself still exists. It still prohibits certain calls without consent. The question is just what kind of consent, and that question is being answered in real time across the federal courts.

What You Should Do Now

If you are an e-commerce business or any company that uses automated marketing communications, here is the practical takeaway.

Do not throw out your written consent platforms. They are still valuable as evidence, even if the legal requirement for them is fading.

Do audit your consent practices. Make sure you understand what you are collecting, how you are storing it, and whether it will hold up if challenged. The fact that written consent may not be legally required under the TCPA does not mean that sloppy consent practices will not get you into trouble.

Do pay attention to where you operate. If your business is national, you need to account for the patchwork of federal circuit decisions and state laws that may apply to your communications.

And if you are already facing a TCPA lawsuit, talk to a lawyer who understands the current state of the law. The ground is shifting, and arguments that were not available two years ago may be decisive today.

Jonathan L.A. Phillips advises e-commerce businesses and other companies on TCPA compliance and defend against TCPA claims. If you have questions about how these developments affect your business, contact him at (309) 643-6518 or visit pb-iplaw.com or look around here on his personal website.