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Consumer Protection
The Telephone Consumer Protection Act of 1991 (TCPA) is a federal law that was enacted to protect consumers from unwanted communications by prohibiting automated messages without prior consent of the recipient. 47 U.S.C. § 227. Scam artists often target susceptible older adults with unsolicited phone messages to peddle bogus investments, romance and gift card scams, and other frauds. The Federal Communications Commission (FCC) is the government agency responsible for establishing regulations to implement the TCPA, and AARP has been a consistent advocate for TCPA regulations that protect consumers from unwanted communications. See, e.g., AARP, Comment on Proposed Rule: Implications of Artificial Intelligence Technologies on Protecting Consumers From Unwanted Robocalls and Robotexts, CG Docket No. 23-362 (Oct. 10, 2024); AARP, Comment on Proposed Rule: Strengthening the Ability of Consumers to Stop Robocalls, CG Docket No. 02-278 (Jan. 31, 2003).
Over the years, a critical FCC effort has been defining key terms in its rule revisions and guidance to keep up with advances in technology. The Supreme Court has addressed some of these issues in prior terms. See, e.g., Facebook, Inc. v. Duguid, 592 U.S. 395, 406-09 (2021) (definition of “automatic dialing system” under TCPA). On the horizon are at least three potential consumer protection issues that may reach the Supreme Court in the coming years.
First is the possible reversal of the FCC’s 2003 decision that “telephone calls” include text messages. See Rules and Regls. Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115, ¶ 165 (July 3, 2003). As a result of the FCC’s guidance, consumers had successfully brought class actions against entities that violated the TCPA by sending repeated unsolicited text messages. See, e.g., Melito v. Am. Eagle Outfitters, Inc., No. 14-cv-2440, 2017 WL 3995619, at *20 (S.D.N.Y. Sept. 11, 2017) (approving settlement of $14,500,000 to class members who received unsolicited texts), aff’d in part and dismissed in part sub nom., Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85 (2d Cir. 2019) (affirming settlement); Ellison v. Steven Madden, Ltd., No. 11-cv-05935, 2013 WL 12124432, at *9-12 (C.D. Cal. May 7, 2013) (approving settlement of $10 million to class members who received unsolicited texts). However, a 2024 Supreme Court decision calling for less court deference to agency interpretations has sparked litigation resulting in differing rulings on this issue. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402-03 (2024); see also McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025) (district courts not bound by FCC interpretations).
Earlier this year, the U.S. Court of Appeals for the Ninth Circuit confirmed that telephone calls under the TCPA include text messages. Howard v. Republican Nat’l Comm., 164 F.4th 1119, 1123-24 (9th Cir. 2026). Conversely, in Steidinger v. Blackstone Med. Servs., the Seventh Circuit reached the opposite result, holding that “telephone calls” do not include text messages. No. 25
2398, 2026 WL 2028517, at *1 (7th Cir. July 14, 2026). Relying on the context of the TCPA’s enactment and the ordinary public meaning of telephone calls, it created a circuit split by holding that “texts are not calls” under TCPA. Id. at *1-6. The Eleventh Circuit is likely to deepen the split, as plaintiffs in Radvansky v. Kendo Holdings, Inc. recently appealed the Northern District of Georgia’s holding that “telephone calls” do not include text messages. No. 23-cv-00214-LMM, 2026 WL 810929, at *3 (N.D. Ga. Feb. 12, 2026); Radvansky, No. 26-10837-FF (11th Cir. 2026). With a circuit split created and likely to grow over whether text messages constitute “telephone calls” under the TCPA, Supreme Court review is foreseeable in the future.
A second emerging issue concerns the meaning of certain consent provisions in the TCPA. The law currently allows prerecorded voice calls and calls using automatic telephone dialing systems when the recipient has given “prior express consent.” 47 U.S.C. § 227(b)(1)(A). In 2012, the FCC specified that automated or prerecorded calls are prohibited unless the recipient has given “prior express written consent,” 47 C.F.R. § 64.1200(a)(3), and courts deferred to the FCC’s regulations in that regard. See, e.g., Sullivan v. All Web Leads, Inc., No. 17-C-1307, 2017 WL 2378079, at *2, *6 (N.D. Ill. June 1, 2017). Earlier this year, the Fifth Circuit held that the TCPA’s plain text does not require prior express consent to be in writing. Bradford v. Sovereign Pest Control of TX, Inc., 167 F.4th 809, 812 (5th Cir. 2026). Relying on Bradford, federal district courts in Wisconsin and Maryland likewise concluded that oral consent may satisfy the statute. Van Elzen v. Am. Home Shield Corp., No. 24-C-1206, 2026 WL 1078771, at *7 (E.D. Wis. Apr. 21, 2026); Bradley v. Dentalplans.com, 2026 WL 788856, at *9-11 (D. Md. Mar. 20, 2026). Bradley is now on appeal before the Fourth Circuit. See Bradley, No. 26-1537 (4th Cir. 2026).
The third consumer protection issue also concerns the scope of the phrase “prior express consent,” but in the context of telemarketing and advertising robocalls. See Targeting and Eliminating Unlawful Text Messages, Rules and Reguls. Implementing the Tel. Consumer Prot. Act of 1991, Second Report and Order, 38 FCC Rcd. 12247, ¶¶ 30-53 (Dec. 18, 2023). In 2023, the FCC adopted a rule providing that consumers may consent only to calls from a single seller at a time and only when the calls are “logically and topically associated with the interaction that prompted the consent.” Id. at ¶ 30. However, in Insurance Marketing Coalition Ltd. v. FCC, the Eleventh Circuit held that the FCC exceeded its statutory authority by imposing restrictions not found in the TCPA’s text and vacated those portions of the rule. 127 F.4th 303, 313-18 (11th Cir. 2025). Whether other federal appellate courts will adopt the Eleventh Circuit’s interpretation remains to be seen. The decision, however, sets the stage for further litigation over the scope of the FCC’s rulemaking authority under the TCPA, particularly if other federal appellate courts disagree.
Given that millions of Americans—many of whom are vulnerable older adults—are exposed to scams through unsolicited robocalls and text messages each year, coupled with the emerging disagreements among the federal courts of appeals, one or more of these issues is likely to reach the Supreme Court in the near future.
Mary William, MWilliam@aarp.org
2026 Supreme Court Preview
The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.