On June 20, 2025, the U.S. Supreme Court released a landmark opinion in McLaughlin Chiropractic Associates, Inc., v. McKesson Corp., further reshaping the scope of judicial review of agency action. Building on last year’s ruling in Loper Bright Enterprises v. Raimondo, the Court held that district courts are not bound by agency interpretations of statutes in civil and government enforcement proceedings – even where Congress has provided that “exclusive” review of the agency’s ruling lies with the Courts of Appeal in pre-enforcement proceedings. In practical terms, that means that although a court must afford “appropriate deference” to an agency’s statutory interpretation, the court must apply its own judgment.
McLaughlin involved a putative class action brought under the Telephone Consumer Protection Act (TCPA) over McKesson Corporation’s alleged sending of unsolicited fax advertisements, including through online fax services, to various medical practices, including McLaughlin Chiropractic Associates. One issue in the case was whether online fax services constitute a “telephone facsimile machine” under the TCPA. During the pendency of this litigation, the Federal Communications Commission (FCC) issued a Declaratory Ruling, dubbed the Amerifactors Order, determining that an online fax service is “not a ‘telephone facsimile machine’ and thus falls outside the scope of the [TCPA].” Relying on the Hobbs Act, which grants “exclusive jurisdiction” to the Courts of Appeal to “determine the validity” of agency orders in pre-enforcement challenges brought within 60 days of the agency’s action, including those of the FCC, the district court excluded the online faxes from the claim, significantly reducing McLaughlin’s damages, a decision affirmed by the Ninth Circuit.1 The issue before the Supreme Court was whether, under the Hobbs Act, the district court was bound by the FCC’s declaratory ruling.
In a 6-3 opinion delivered by Justice Kavanaugh, the Supreme Court unequivocally said “no.” Noting the longstanding “basic presumption of judicial review,” including the presumption codified in the Administrative Procedure Act, the Supreme Court stated that the “default rule” is that a district court must “independently determine for itself whether the agency’s interpretation of a statute is correct.” In doing so, district courts must apply “ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” This was despite the fact that up to this point, every Court of Appeal that considered the issue concluded just the opposite.
Although McLaughlin carries potential implications far beyond the TCPA,2 it is expected to significantly impact the TCPA landscape (already termed by some as a “seismic shift”), particularly in the area of litigation. With clear direction from the Supreme Court that district courts are not bound by the various FCC rulings interpreting the TCPA since the TCPA’s enactment, the courts and litigants have the opportunity to redefine the contours of the statute.3
At least three topics are likely to feature prominently in future single-plaintiff and class action TCPA litigation flowing from McLaughlin, and there may well be others:
The applicability of the TCPA to online fax solicitations. Since McLaughlin arose from a dispute over messages sent through online fax services, an uptick in this type of TCPA litigation is likely to ensue. Although the Northern District Court of California is yet to decide upon remand whether McKesson Corporation’s online fax messages violated the TCPA, that decision is not binding on any other court or litigant, and the issue is open for re-examination by district courts across the country.
TCPA consent requirements. The FCC has issued numerous rules and orders relating to the TCPA’s consent requirements, particularly involving calls to cellular phones,4 all of which are now apparently open to collateral attack in TCPA civil litigation. For example, in its 2012 Report and Order the FCC revised its TCPA rules to require “prior express written consent” for certain types of telemarketing robocalls and robotexts. Given the Eleventh Circuit’s recent comments in Insurance Marketing Coalition Limited v. FCC that “the TCPA requires only ‘prior express consent’—not ‘prior express consent’ plus,” and that courts should not look beyond the common law meaning of consent, the FCC’s “prior express written consent” definition could certainly come under fire post-McLaughlin.5
Likewise, a 2015 Declaratory Ruling and Order found that providing a phone number to a business or other entity constitutes “prior express consent” to receive non-telemarketing robocalls and robotexts that are “closely related to the purpose” for which the number was provided.6 This grew out of the FCC’s 2008 ACA International Declaratory Ruling, finding that providing a cell phone number to a creditor in connection with a transaction, such as a credit application, serves as “prior express consent” to be contacted at that number regarding the debt resulting from the transaction. Similarly, in the 2016 Blackboard/Edison Declaratory Ruling, the FCC made similar findings with respect to non-telemarketing calls made by schools and utility companies, with the FCC making similar findings in other contexts as well. Post-McLaughlin, these “prior express consent” rulings on non-telemarketing calls and texts to mobile numbers will undoubtedly be one of the areas that will be probed by the plaintiffs’ class action bar.
The applicability of the TCPA’s wireless calling prohibitions to text messages, and the “residential subscriber” provisions to cellular phones. TCPA litigation over robocalls and robotexts to wireless numbers have exploded over the past two decades with no sign of abating, with double digit increases in new TCPA complaint filings over the last several years. Citing the text of the TCPA, and notwithstanding FCC rules and decisions to the contrary, defendants have sought dismissal of these cases by arguing that provisions of the statute relating to calls to “residential subscribers” do not apply to calls made to cellular phones, and have also argued that sending text messages does not constitute making “a call” for purposes of the wireless calling prohibition. To date, courts have made short shrift of these arguments, finding they lacked jurisdiction under the Hobbs Act7 to depart from the FCC’s presumption that wireless subscribers are “residential subscribers” for purposes of the TCPA,8 and its determination that the TCPA’s wireless calling prohibitions apply to text messaging.9
The future of these and certain other FCC rules and regulations are now uncertain under McLaughlin, with new opportunities for TCPA defendants to defend against TCPA claims. Especially in the crosshairs are claims based on calls and text messages to wireless numbers brought under the TCPA provisions and regulations prohibiting “telephone solicitations” to “residential subscribers,”10 as well as claims based on text messages to wireless numbers brought under the prohibitions against use of autodialers or pre-recorded/artificial voice absent prior express consent or an emergency purpose.11
Key takeaways from McLaughlin from a TCPA perspective. It is too early to tell whether and to what extent McLaughlin will redefine the TCPA landscape. Some district courts may leave the FCC’s rulings intact, while others may disagree with the FCC, resulting in different interpretations of the TCPA within circuits, until Courts of Appeal weigh in, and then between circuits, until cases make their way to the Supreme Court.
Although certain aspects of the Supreme Court’s decision can be favorable for businesses, the decision also carries increased risk for TCPA liability due to the resulting uncertainty over TCPA requirements. Reliance on longstanding FCC rules, including those relating to consent where a phone number is provided in connection with a transaction or account, will certainly need to be reevaluated.
Businesses should brace themselves for a new wave of TCPA litigation that might arise from McLaughlin. Businesses should review their calling and texting practices, as well as their procedures for obtaining and confirming consent from individuals. At the same time McLaughlin provides new opportunities to defend against TCPA claims based on FCC rules and decisions that may stretch or go beyond the boundaries of the TCPA’s statutory provisions.
1True Health Chiropractic, Inc. v. McKesson Corporation, 2023 WL 7015279, at *2 (9th Cir. 2023).
2McLaughlin applies to all agency determinations where a statute authorizes pre-enforcement review but is silent as to whether a party may contest the agency’s legal interpretation in subsequent enforcement proceedings, as is the case with the Hobbs Act. Through the Hobbs Act alone, the decision paves the way for district court review in government and civil enforcement proceedings of the final orders of the FCC, Department of Agriculture, Department of Transportation, Federal Maritime Commission, Nuclear Regulatory Commission, Surface Transportation Board, and Department of Housing and Urban Development.
3 The Supreme Court also indicated that because the case before it involves interpretation of a statute, it was focused on that scenario. It noted, however, that “judicial review in enforcement proceedings of course may also include review of whether the rule or order was arbitrary and capricious under the APA or otherwise unlawful”. This leaves open the likelihood that challenges to the FCC’s TCPA rules and orders may now be fair game in TCPA litigation, even those that do not involve statutory interpretation, which will no doubt cut both ways for plaintiffs and defendants.
4 The TCPA prohibits certain types of calls, particularly to mobile numbers, made with an automatic telephone dialing system or an artificial or prerecorded voice without the prior express consent of the called party. 47 U.S.C. § 227(b).
5We discussed the IMC decision in more detail in our January 29, 2025 blog post.
6For example, under the FCC ruling, consumers who provided their phone numbers to retailers during product checkout or account creation, are presumed to have consented to receive non-telemarketing calls or messages “closely related” to their purchases or accounts.
7See Buxton v. Full Sail, LLC, 2024 WL 5057222, at *4 (M.D. Fla. Dec. 10, 2024); Radvansky v. Kendo Holdings, Inc., 744 F. Supp. 3d 1314, 1318-19 (N.D. Ga. Aug. 13, 2024); Hudson v. Palm Beach Tan, Inc., 2024 WL 4190513, fn. 4 (M.D.N.C. Aug. 12, 2024); Tessu v. AdaptHealth, LLC, 2023 WL 5337121, at *5 (D. Md. Aug. 17, 2023); Pariseau v. Built USA, LLC, 619 F.Supp.3d 1203 (M.D. Fla. Aug. 5, 2022).
8See e.g., 47 C.F.R. § 64.1200(e)); 2003 Report and Order, 18 FCC Rcd. 14014, 14039 (2003) (“[W]e will presume wireless subscribers who ask to be put on the national do-not-call list to be ‘residential subscribers.’”).
9See 2015 Declaratory Ruling and Order, 30 FCC Rcd. 7961, 8016 ¶ 107 (2015) (the TCPA affords text messages “the same consumer protections . . . as voice calls”).
10See 47 C.F.R. § 64.1200(c).
11See 47 U.S.C. § 227(b)(1)(A)(iii).
[View source.]
