The Death of Deference? TCPA Litigation After Loper Bright and McLaughlin Chiropractic

Business litigation attorneys Mike Daly, Marsha Indych and Emanuel McMiller co-authored an article titled “The Death of Deference? TCPA Litigation After Loper Bright and McLaughlin Chiropractic” for the American Bar Association.

The authors detailed how, with Chevron overturned and courts left to make their own statutory interpretations, defendants in Telephone Consumer Protection Act (TCPA) cases have revived statutory arguments that many courts previously rejected by deferring to Federal Communications Commission (FCC) guidance. One example is whether a text message qualifies as a “telephone call” for purposes of stating a claim for violation of Do-Not-Call rules, with the FCC answering in the affirmative. While several courts have followed the FCC’s lead, several others have reached the opposite conclusion. Cases coming from both camps are now being appealed.

“TCPA litigants will be keeping a close eye on that and other cases as they make their way through the appellate process,” the co-authors added. “The only thing that seems certain at this point is that it will be some time before there is any consensus on this important issue.”