Does prior express written consent permit calls/texts to consumers during the Federal Communications Commission's ("FCC") proscribed quiet hours? As our readers know, the FCC is now considering this very issue insofar as it relates to the Telephone Consumer Protection Act ("TCPA"). In the wake of the United States Supreme Court's decision in Loper Bright, which opened the door to judicial review of agency interpretation, the FCC's anticipated ruling may not matter much. This is especially true after a more recent Supreme Court decision which is likely to further erode judicial deference to agency rulemaking and interpretation. Below, we briefly discuss the decision and go into detail about its impact on the issue of consent in TCPA quiet hours cases.
Consent and Quiet Hours Under The TCPA
In McLaughlin Chiropractic Assoc. Inc., McKesson Corp.("McLaughlin"), the Supreme Court reviewed the Ninth Circuit's affirmation of a district court's decision that it was bound by a FCC 2019 Declaratory Ruling ("2019 Ruling") determining that online fax services are not telephone facsimile machines for TCPA purposes. In reversing the Ninth Circuit's decision, the Supreme Court held that the district court was not bound by the 2019 Ruling and remanded McLaughlin back to the district court to determine whether online faxes fall within the ambit of the TCPA. In its holding, the Supreme Court held that, absent specific statutory language to the contrary, district courts can review FCC TCPA rulemakings and interpretations by applying ordinary principles of statutory construction.
To be clear, the ruling in McLaughlin does not mean that district courts can invalidate FCC rules and interpretations. Rather, McLaughlin allows parties in TCPA lawsuits to challenge whether FCC regulations are binding on the courts in reaching decisions within said lawsuits. With that said, when coupled with Loper Bright, McLaughlin casts doubt on the future of judicial deference afforded to present and future FCC rulemaking and interpretation. In the context of consent and quiet hours TCPA cases, companies are certain to challenge an FCC regulation holding that calls/texts to consumers made with consent must be placed within the hours of 8:00 a.m. and 9:00 p.m. (local time of the call recipient).
Will McLaughlin Curtail TCPA Quiet Hours Cases?
Assuming the FCC issues a ruling that consent does not permit communications to consumers during TCPA quiet hours, companies are certain to challenge this ruling in district courts across the country. Such challenges are likely to lead to both inconsistent rulings and uncertainty in the telemarketing industry. Although McLaughin is unlikely to directly curb the filing of TCPA quiet hours lawsuits, McLaughlin paves the way for companies named as defendants in these lawsuits to: (1) question FCC TCPA-related rules and regulations; and (2) request that district courts independently scrutinize the TCPA's statutory language.
Even if companies have consent, quiet hours calls/texts to consumers should be avoided. With McLaughlin diminishing the impact of judicial deference to agency rules and interpretations, future district court rulings will require guidance from attorneys who stay abreast of the latest telemarketing law developments. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on telemarketing law compliance; and (2) defend companies against TCPA class action lawsuits.
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