Major TCPA Shift: Fifth Circuit Rules Oral Consent Is Valid

Following the Supreme Court's decision in McLaughlin Chiropractic Associates v. McKesson Corp., which we discussed last year in depth, federal courts have gained the ability to deviate from the Federal Communications Commission's interpretations of the Telephone Consumer Protection Act (TCPA). Last week, the Fifth Circuit Court of Appeals issued what may be the most consequential decision yet in the post-McLaughlin world by rejecting the FCC's 2013 ruling that a customer's express consent under the TCPA must be in written form. This FCC rule imposed a heightened "prior express written consent" requirement, despite written consent not appearing anywhere in the TCPA's text.

From 1991 through 2012, the FCC consistently maintained that consent under the TCPA could be "expressed" simply by providing a telephone number, with no requirement that the consent be written or signed (see, e.g., In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991,