Author: Jennifer A. Riley

By Gerald L. Maatman, Jr., Jennifer A. Riley, Anna Sheridan, and Ryan T. Garippo

Duane Morris Takeaways:  On March 20, 2026, in Bradley, et al. v. DentalPlans.com, No. 20-CV-010904, 2026 U.S. Dist. LEXIS 59569 (D. Md. Mar. 20, 2026), Judge Brandan Hurson of the U.S. District Court for District of Maryland decertified a certified class action and granted summary judgment on a named plaintiff’s Telephone Consumer Protection Act (“TCPA”) claim.  The decision is premised on the legal conclusion that the Federal Communications Commission (“FCC”) lacked the authority to interpret the TCPA’s consent provisions to require prior express written consent for telemarketing calls and continues the trend of courts which are challenging the FCC’s longstanding monopoly to interpret the statute.

Case Background

DentalPlans operates a “direct-to-consumer marketplace” that sells dental savings plans, including plans offered by Cigna.  In November 2018, Deborah Bradley called DentalPlans to enroll in a plan and the representative asked her whether the company had her consent to contact her using “automated dialing system or prerecorded message.”  Bradley, et al. v. DentalPlans.com, No. 20-CV-01094, 2024 U.S. Dist. LEXIS 10050, at *3 (D. Md. June 6, 2024).  Bradley ultimately provided such consent and signed up for a dental discount plan with Cigna.

In September 2019, however, Bradley spoke to another DentalPlans representative and told that representative that she did not want her dental plan to automatically renew.  As a result, DentalPlans started placing prerecorded calls to Bradley which informed her that “her membership was ending soon and that she could renew her plan.”  After Bradley’s plan expired, she continued to receive prerecorded calls which “attempted to ‘win back’ [her] business by encouraging her to repurchase her Cigna plan with DentalPlans.”  Id. at *5.  In total, DentalPlans placed 10 “win back” calls to Bradley prior to the filing of the action.

As a result of these calls, on April 28, 2020, Bradley filed a putative class action lawsuit under the TCPA, alleging that the calls constituted unauthorized telemarketing calls using prerecorded messages.  The crux of Bradley’s argument was that because these calls allegedly constituted “telemarketing” the applicable FCC regulations required prior express written consent, and oral consent would not suffice.  47 C.F.R. § 64.1200(a)(2).  The court agreed with Bradley’s interpretation of the regulation, granted class certification, and certified a class comprised in part of “any consumer who signed up by telephone.”  Id. at *27.  Bradley then sent notice to the class members and the parties continued to litigate the case.

DentalPlans ultimately filed a motion for reconsideration of the court’s order granting class certification.  In that motion, Dental Plans argued, inter alia, that the court’s reliance on 47 C.F.R. § 64.1200(a)(2) was misplaced following the U.S. Supreme Court’s mandate that district courts are “not bound by the FCC’s interpretation of the TCPA.”  McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025).  The parties then briefed that issue.

The Court’s Decision

In a thorough 24-page opinion, Judge Hurson walked through the proper interpretation of the phrase “prior express consent” as used in the TCPA and the scope of Congress’s delegation to the FCC.

In so doing, Judge Hurson turned to the Eleventh Circuit’s opinion in Insurance Marketing Coalition Ltd. v. FCC, 127 F.4th 303, 312 (11th Cir. 2025), which explained that the “TCPA gives the FCC only the authority to ‘reasonably define’ the TCPA’s consent-provisions” and not create a non-statutory consent regime. Judge Hurson, therefore, reasoned that because the phrase “prior express written consent” was not contained in the statute, the proper interpretation of the statute’s actual language hinged on the authority that Congress delegated to the FCC.

Similarly, Judge Hurson looked to the Fifth Circuit’s very recent decision in Bradford v. Sovereign Pest Control of Texas, Inc., 167 F.4th 809, 812 (5th Cir. 2026), which held the TCPA provides “no basis for concluding that telemarketing calls require prior express written consentbut not oral consent.”  (emphasis in original).

Based on these opinions, because the “written consent” language does not appear in the statute, Judge Hurson concluded that Congress needed to delegate the interpretation of the TCPA to the FCC for its current interpretation to stand.  But no such delegation is contained in the TCPA.  As a result, the “best interpretation” of the statute was that “express consent” is the only requirement imposed by the TCPA, even if the consent is obtained orally.

Therefore, because Bradley provided oral consent to DentalPlans receive such to prerecorded messages when she signed up for her dental plan, she (and, the class) had no viable claims.  The court, accordingly, granted summary judgment on Bradley’s individual claim and decertified the previously certified class action.

Implications For Companies

The Bradley decision continues an important trend for companies making telemarketing calls to consumers.

As we explained here, when the Fifth Circuit decided Bradford, the written consent requirement has long been thought of as one of the hallmarks of the FCC’s regulatory regime and is often used by the plaintiff’s bar to assert technical violations of the TCPA even where it is clear that a customer approved of such calls.  But the current trend shows that the underlying regulatory scheme is quickly eroding with each decision that passes.

Nevertheless, the decisions in Bradford and Bradley represent only the middle ground on these issues.  Other courts would go further and hold that Congress’s entire delegation of any of its authority “run[s] afoul of the nondelegation doctrine, since there are no delimitations on the discretion it grants the” FCC.  McGonigle v. Pure Green Franchise Corp., No. 25-CV-61164, 2026 U.S. Dist. LEXIS 8059, at *4 (S.D. Fla. Jan. 15, 2026).  Thus, the landscape of positions on such issues is wide ranging and changing by the day.

As a result of this shifting landscape, corporate counsel, and companies engaged in telemarketing, should continue to monitor this blog to stay apprised of any updates as new decisions continue to modify the FCC’s longstanding interpretation of the TCPA.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo

Duane Morris Takeaways:  On March 13, 2026, in Garvey, et al. v. Gaitan, No. 23-CV-00920, 2026 U.S. Dist. LEXIS 53447 (D. Nev. Mar. 13, 2026), Judge Andrew Gordon of the U.S. District Court for the District of Nevada certified a Telephone Consumer Protection Act (“TCPA”) class action against an individual realtor for violation of the statute’s prohibition against consentless prerecorded voice messages.  The decision serves as a cautionary tale for companies and their individual agents, particularly those entities engaged in direct-to-consumer marketing, to consult experienced TCPA counsel in connection with their marketing campaigns to limit their potential exposure.

Case Background

In 2023, Britney Gaitan, a realtor based in Las Vegas, used an online third-party service to accumulate the homeowner contact information for home sellers whose online real estate listings were either withdrawn or expired.  Gaitan then uploaded that list into a software that allowed her to send a prerecorded ringless voicemail message to the list of the home sellers she created.  As a result, on March 3, 2023, and March 16, 2023, Gaitan sent these prerecorded voice messages to everyone on her list, including Wayne Garvey, one of the homeowners.  Gaitan had no documentation that she received prior consent before placing these ringless voicemail messages.

Garvey ultimately filed suit against Gaitan alleging that she violated the TCPA’s prohibition on consentless prerecorded voice messages codified at 47 U.S.C. § 227(b)(1)(A)(iii).  Garvey also sought to maintain the case as a class action and represent the owners of the 983 unique cell phone numbers that were called 1,983 times over the course of the two days.  Put differently, Garvey ultimately asked the court to certify a class worth up to $2,974,500 or $1,500 per call.

The Court’s Ruling

On March 13, 2026, Chief Judge Andrew Gordon granted Plaintiff’s motion and certified a class against Gaitan.  Although Gaitan raised arguments in response to many of the necessary elements for a plaintiff to certify a class action, the dispute largely hinged on Rule 23’s predominance requirement — i.e., whether a common questions of law or fact predominate over issues affecting only certain individual class members.  To that end, Gaitan argued that four individualized issues would predominate.

First, Gaitan asserted that individualized inquiries were required to determine whether any class member actually listened to the voicemail.  The problem, however, is that “Gaitan cite[d] no law that states a recipient must listen to the voicemail to suffer an injury under the TCPA.”  Garvey, 2026 U.S. Dist. LEXIS 53447, at *12.  To the contrary, the Federal Communications Commission (the “FCC”) only requires that a prerecorded voicemail must be “completed” to implicate the statute, and Garvey submitted such common proof via expert testimony.  In short, the court concluded that these completed calls are “a central, common question of the class’s TCPA claims that predominates over any individualized issues.”  Id. at *15.

Second, Gaitan asserted the same argument (i.e., an individualized issue as to whether any class member listened to the call) but repurposed it under the injury-in-fact requirement of Article III of the U.S. Constitution.  For the same reason, the court concluded that because Gaitan could not cite “any law that the putative class members need to listen to the prerecorded message to be injured under the TCPA . . . they have Article III standing if Gaitan used a prerecorded voice in her ringless voicemail drops when calling their cell phones, and they need not prove any other harm.”  Id. at *18.  This argument was overruled.

Third, Gaitan asserted that there was individualized inquires as to whether any given class member consented to receive prerecorded voice messages.  As the court aptly observed, Gaitan “indicated that she has no documentation showing that she obtained consent from any putative class members.”  Id. at *19.  Gaitan tried to point to the terms of the multiple listing service (“MLS”), which supposedly require a homeowner to provide his or her phone number to create a listing, and argued this action constitutes consent to receive such calls.  Although the court was unconvinced, it correctly observed that the consent defense would apply to the entire class and thus “Gaitan has not provided evidence that determining whether some MLS users consented to being contacted about their property is an individualized issue.”  Id. at *20.

Fourth, Gaitan asserted that individualized inquiries were required to determine whether any individual owner of a telephone number was a “residential telephone line” within the meaning of the TCPA.  The primary problem, however, is that residential telephone subscriber status is not an element of a claim under Section 227(b)(1)(A)(iii) unlike other sections of the TCPA.  In other words, this argument was wholly inapplicable and “does not defeat class certification.”  Id. at *21.

As a result, once the realtor’s most significant objection to class certification was overruled, it was a near forgone conclusion that a class would be certified and thus the court proceeded to grant Garvey’s motion.

Implications For Companies

There are multiple cautionary messages embedded in Gaitan for those engaged in direct-to-consumer marketing.  The most salient three takeaways are listed below.

The first (and, most important) lesson of Gaitan is to obtain “express consent” prior to making calls using an artificial or prerecorded voice message.  47 U.S.C. § 227(b)(1)(A).  It can be difficult to defend a TCPA class action without a consent defense and Gaitan is no different.

The second lesson is that TCPA liability does not only attach to companies but may also be applied “to any person within the United States” who makes such calls.  Id.  Here, Britney Gaitan is the sole defendant facing TCPA liability and thus Gaitan’s personal assets are likely on the line for any resulting judgment.  But that is not the end of the story.  Many similar agencies have indemnification agreements with their agents, which require the agency to pay for the liabilities incurred by the agent.  To the extent such an agreement exists here, both Gaitan and her agency may have exposure for this TCPA liability. 

The third lesson is to ensure that any TCPA defense strategy is prophylactic in nature and crafted in collaboration with defense counsel well versed in this space.  In this case, Gaitan raised arguments based on wholly inapplicable portions of the statute or asserted defenses with little chance of success given the facts of the dispute.  If Gaitan consulted with experienced defense counsel in advance of the calls, then this situation could have been avoided.  But once the calls are made, the best course of action is for a TCPA defendant to contact experienced defense counsel to help navigate any resulting class actions.