For years, TCPA compliance has largely meant following the statute as interpreted by FCC rules and regulations. That is no longer enough. Since the Supreme Court scrapped Chevron deference in Loper Bright and then held in McLaughlin that district courts are not bound by the FCC’s interpretations of the TCPA, courts are increasingly asking a simpler—yet more ambiguous—question: what does the statute itself say?
That matters because much of modern TCPA compliance rests not just on the statute, but on FCC gloss layered on top of it. And where that gloss stretches beyond the text, litigants are starting to push back. Plaintiffs are pressure-testing old rules. Defendants are challenging them, too. The predictable result is more litigation, more forum splits, and less certainty.
Two issues are quickly emerging as the next major fault lines.
1. Are Text Messages A “Call” For Purposes of the TCPA?
The first issue is whether a text message is even a “call” for purposes of the TCPA’s Do Not Call provisions. The FCC has long said yes, but after McLaughlin, some courts are stepping back from the FCC’s view and looking at the statutory text to determine if the TCPA’s DNC provisions apply to text messages.
At least for now, courts are split. Some have allowed DNC claims based on texts to proceed, reasoning that texts can fall within the statute. Others have held the opposite, concluding that a text message is not a “telephone call” under Section 227(c)(5). That means one of the most common TCPA theories in recent litigation—marketing texts sent to numbers on the DNC Registry—is no longer as straightforward as plaintiffs would like.
2. Is it Prior Express Consent or Prior Express Written Consent?
The second fault line is consent. The TCPA itself requires “prior express consent.” In 2012, the FCC went further, imposing a “prior express written consent” requirement for certain telemarketing robocalls. For years, that extra step was treated as settled law. Not anymore.
Last year, we wrote about the Eleventh Circuit’s decision in Insurance Marketing Coalition v. FCC, which vacated the FCC’s one-to-one consent and lead-generation rules on the ground that the agency had gone beyond the TCPA’s text.
On February 25, 2026, in Bradford v. Sovereign Pest Control of TX, Inc., the Fifth Circuit pushed that trend a step further. It held that the TCPA itself permits either oral or written consent for prerecorded or autodialed telemarketing calls, rejecting the FCC’s written consent requirement.
That’s a big deal. It means that, at least in the Fifth Circuit (and likely in other courts outside of the Fifth Circuit), plaintiffs cannot simply cite the FCC’s regulation, show lack of written consent, and assume the analysis is over. District courts now have latitude to determine whether non-written consent may still be “express consent” under the statute. Bradford shows it’s not just about striking down new FCC rules on direct review. Some courts are now (in line withMcLaughlin) refusing to treat longstanding FCC requirements as controlling in ordinary TCPA cases.
None of this means the FCC’s TCPA rules disappeared overnight. Courts may still find them persuasive, and many will. But the old assumption—that an FCC interpretation is effectively the law unless and until an appellate court overturns it—is gone. While the FCC’s views still matter, they don’t necessarily decide the case.
Businesses may now stop treating every FCC TCPA rule as untouchable, but they also should not assume the FCC rules can be safely ignored. The distinction between the statute’s text and FCC rules is now driving real outcomes in court—and it is likely to drive the next wave of TCPA litigation. What the TCPA requires may now be less clear, so businesses should continue operating with caution in this highly litigated area.