Erosion of FCC Power Creates Hurdles to Comply With TCPA Rules

The Bottom Line

• The US Supreme Court’s decision empowering district courts to overturn FCC guidance will create an opaque regulatory climate.
• Businesses will have to grapple with regulations on a state-by-state basis.
• Complying with the patchwork of “quiet hours” legislation is a significant challenge.

The shifting regulatory landscape of the Telephone Consumer Protection Act this year, including new case law and applicable rules, has created additional challenges for businesses to navigate.

Businesses that want to remain compliant with the TCPA should be aware that the traditional deference courts have given to Federal Communication Commission orders no longer applies.

They also should learn about new declaratory rulings interpreting the TCPA, the open questions raised by recent “quiet hours” litigation, and the potential pitfalls for litigation under new consent revocation rules.

Deference to Debate

The US Supreme Court’s decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp. in June has far-reaching consequences.

Prior to the ruling, the Hobbs Act—which grants courts of appeal jurisdiction to review FCC final orders—precluded lower courts from independently assessing those orders. Instead, a district court’s purview was to defer to and apply agency interpretation of the TCPA.

The justices upended this deference when they held the Hobbs Act doesn’t require district courts to follow the FCC’s interpretation of the TCPA in enforcement proceedings. Rather, district courts should “independently determine” whether the agency’s interpretation is correct.

In McLaughlin, this meant the district court was free to ignore the FCC’s order interpreting the term “telephone facsimile machine” to exclude online fax services, which both altered plaintiff’s available claims and defendant’s defenses.

McLaughlin shifts the power of statutory interpretation from the regulatory agency to district court judges and nullifies decades worth of guidance from the FCC that are now subject to re-litigation. This creates uncertainty, as well as more room for variance and lack of uniformity across the country.

As Justice Elena Kagan highlighted in her dissent, it largely eradicates “finality and certainty” for regulated parties, such as businesses attempting to comply with the TCPA. Businesses need to know they can no longer rely on FCC orders and declaratory rulings as “sure things.”

In that vein, McLaughlin could lead to re-litigation of issues that businesses thought were settled. Businesses should realize McLaughlin expands available claims for plaintiffs because the FCC’s orders will no longer operate to limit scope; this will likely require businesses to expend more resources in defending against TCPA lawsuits.

TCPA’s Newest Battleground

So-called “quiet hours” litigation (cases in which plaintiffs allege they received telemarketing texts or calls during the restricted hours of 9 p.m. to 8 a.m., prohibited by the TCPA’s implementing regulations) has been prominent in 2025.

Recent quiet-hour lawsuits are generally either still unresolved by the court or have settled out of court, leaving open at least two big questions regarding the TCPA’s reach.

First, does the TCPA bar individuals who consented to receiving business communications from suing that business for contacting them during quiet hours? Or do businesses need to collect additional consent beyond the express consent to contact to lawfully bypass the quiet hour restriction? Recent complaints hinge on this distinction.

Current regulations only restrict businesses from making telephone solicitations during off-hours, and under the TCPA, telephone solicitations, by definition, don’t include communications to individuals who have provided prior express consent.

Taken together, the prohibition against contact during quiet hours arguably wouldn’t apply when a business received prior express consent, though at least several plaintiffs have filed cases taking advantage of this unsettled distinction.

It’s unclear whether businesses will prevail at the pleadings stage (or later) based on an argument the TCPA doesn’t bar communications during quiet hours to individuals who previously consented to solicitations.

From a consumer-protection perspective, it seems unlikely the FCC would find a business could have free reign to contact an individual at all hours of the day and night, without restriction, even if that business obtained some form of express consent.

A second open question businesses face is how to comply with the local time component of the quiet-hours restriction, which is challenging given the transitory nature of cellphones. For example, how can a business determine if it’s contacting an individual before 9 p.m. and after 8 a.m. in the recipient’s local time?

While area codes can be instructive, they aren’t dispositive—many people have cellphone numbers that are decades old and may have moved several times, even if their area code remained unchanged. Unlike the TCPA, some states’ laws provide rebuttable presumptions concerning residency—but not all.

In March, the FCC received a petition from the Ecommerce Innovation Alliance and others on both issues and sought comment on the petition thereafter.

The petitioners sought a declaratory ruling that individuals who provide prior express written consent to receive text messages can’t claim damages under the TCPA for messages received during the quiet hours and a clarification or waiver of 47 C.F.R. § 64.1200(c)(1), noting the FCC hasn’t “addressed how a business can know the ‘called party’s location’ when messages are delivered to a mobile phone subscriber.”

To date, the FCC hasn’t issued a declaratory ruling, and it’s unclear whether it will do so. It’s also unclear if an eventual ruling will stand the test of time, given McLaughlin allows any district court to re-examine FCC rulings upon challenge.

Businesses should realize that certain states have longer quiet hours than the TCPA, so merely declining to message individuals from 9 p.m. to 8 a.m. may be insufficient. For example, quiet hours in Florida, Maryland, and Washington are from 8 p.m. to 8 a.m.

This creates additional challenges for businesses to navigate, as they must comply with both the TCPA as well as more restrictive state laws.

Potential Litigation

FCC regulations that took effect on April 11 make it easier for consumers to revoke consent. Under 47 C.F.R. § 64.1200(a)(10), a party may revoke prior express consent by using “any reasonable method to clearly express a desire not to receive” additional contact, with words such as “stop,” “quit,” end,” opt out” or “unsubscribe” constituting reasonable means. Once an individual revokes consent, the entity must honor that request within 10 days of receipt.

The FCC delayed implementation of certain aspects of the regulations until April 11, 2026, after receiving a petition from financial and health-care institutions. The commission granted a limited waiver of the requirement that callers treat a request to revoke consent in response to one type of message as applicable to all future robocalls and robotexts from that caller on unrelated matters.

Even though the new consent revocation rules are only four months old, there is already at least one lawsuit alleging violations. The plaintiff in Saul De La Torre v. American First Finance included screenshots in which they replied to a marketing text message with “[c]ease and desist all communications” but nevertheless continued to receive marketing text messages.

There could be an increase in TCPA litigation as businesses navigate the changing waters following the roll-out of the consent revocation rules and as plaintiffs attempt to leverage another potential avenue to find businesses’ TCPA compliance deficient.

Businesses should program their automated technology systems to understand a broad range of terms consumers may use to revoke consent (such as “cease and desist”) and to ensure a robust review process is in place so revocation requests don’t slip through the cracks.

TCPA Compliance Takeaways

Best practice remains collecting comprehensive consent, including consent to contact during quiet hours. To be safe, businesses should save their outreach for 11 a.m. to 8 p.m. ET for the continental US, which seems to comply with the most restrictive quiet hour requirements.

Businesses also shouldn’t count on FCC orders or declaratory rulings as definitive and should be aware interpretations of the TCPA may vary from judge to judge and jurisdiction to jurisdiction. To that end, businesses should have a continued knowledge of case law within their applicable jurisdiction, as well as state-specific statutes that may affect TCPA liability.

Overall, businesses should brace for increased uncertainty and therefore, an increased volume of litigation, in the TCPA realm.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Grace E. Schmidt is an associate in DTO Law’s New York office, where she focuses on complex commercial litigation and class action defense.

Shilpa Coorg is counsel in DTO Law’s Los Angeles office with more than a decade of litigation experience, including in TCPA, privacy, and intellectual property matters.

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