As our readers are by now aware, on June 28, 2024, the Supreme Court of the United States overturned a legal precedent known as “Chevron deference” by a 6-3 vote. The Court’s opinion in Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. (“Loper Bright”) has major implications for Telephone Consumer Protection Act (“TCPA”) rulemaking.

“Chevron deference” refers to the 1984 landmark Supreme Court ruling in the matter of Chevron v. Natural Resources Defense Council. The decades-old doctrine mandated that, if Congress passes a law that leaves room for interpretation, courts should defer to federal agencies in interpreting the law’s ambiguous provisions. As our readers know, the TCPA is a federal statute that restricts certain types of telemarketing communications. Under the same authority, Congress has tasked the Federal Communications Commission (“FCC”) with rulemaking authority in order to achieve the TCPA’s purposes.

In the wake of Loper Bright however, the FCC may scale back its TCPA rulemaking activity. Even before the Supreme Court issued this monumental decision, FCC Chairwoman Jessica Rosenworcel had called on Congress for statutory assistance in combatting illegal text messages.

Significant TCPA Rulemaking Before Chevron Deference Ended

Utilizing the authority granted to it by Congress, the FCC has engaged in frequent TCPA rulemaking dating back to when the statute was enacted in 1991. Recently, for example:

On March 16, 2023, the FCC adopted an Order that required all carriers to block text messages from invalid, unallocated, or unused numbers. Believing that these numbers are very likely to be used for fraud, the FCC sought to block them at the network level, before callers could reach consumers. Doing so, the FCC believes, helps prevent consumers from being targeted by bad actors.

On December 13, 2023, the FCC adopted an Order creating stricter requirements for the method by which businesses obtain consumer consent. Specifically, the FCC amended the TCPA rule found at 47 C.F.R. § 64.1200, to require businesses to obtain a consumer’s prior express written consent to receive automated telemarketing messages from “a single seller at a time.” The FCC also specified that a consumer’s consent must follow a “clear and conspicuous disclosure” that consumers will receive calls or texts from the seller and that the content of the subsequent calls or texts must be “logically and topically associated with the website where the consumer gave consent.” This measure was aimed at stemming what the FCC terms consent farming, or the unwitting sale of a consumer’s consent information to a number of unanticipated telemarketers.

The aforementioned recent Orders are but two of many TCPA rulemakings that the FCC has promulgated over the years. Before the reversal of Chevron, these rules significantly changed the landscape for future TCPA.

How Might Loper Bright Affect TCPA Rules

First, it is important to note that the Supreme Court, in Loper Bright, explained that its decision does “not call into question prior cases that relied on the Chevron framework.” This means that any previous lower court decisions that upheld FCC rulemakings are still good law.

There is no question, however, that the FCC TCPA rulemaking process will now be more open to challenge. At its core, the Loper Bright decision requires that courts “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Courts previously deferred to FCC rules and orders when evaluating cases that involved, arguably, ambiguous provisions of the TCPA. Now, courts must ensure that the “interpretation of the meaning of statutes, as applied to justiciable controversies,” remains a judicial function.

For decades, the FCC has strived to protect consumers from unlawful telemarketing practices and stayed vigilant in exploring new measures to address evolving technologies. As FCC Jessica Rosenworcel herself noted, however, “it is important to recognize that the strongest authority” for achieving this end goal is in the actual text of the TCPA itself, and the ability to strengthen and clarify the TCPA lies solely in the hands of Congress.

How Might Loper Bright Affect Your Business

The fallout from the end of Chevron deference is difficult to predict. However, as we all know, many courts previously decided telemarketing lawsuits by referencing the FCC’s TCPA rules and orders as binding law. The reversal of Chevron will result in litigants arguing for courts to interpret ambiguous TCPA provisions in their favor. Whatever the case may be, businesses should keep a close eye on how courts now integrate FCC TCPA rulemakings into their decisions.

Now, more than ever, businesses should hire experienced TCPA attorneys that stay up to date with ever-evolving telemarketing case law and regulatory changes.

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