McLaughlin v. McKesson: Challenging FCC TCPA Rulings in Court

Since June 20, 2025, a federal district court hearing a private TCPA lawsuit hasn’t been bound by the FCC’s reading of the statute itself. In McLaughlin Chiropractic Associates v. McKesson Corp., the Supreme Court held that judges decide what the TCPA means for themselves, “affording appropriate respect to the agency’s interpretation.” FCC positions on texts, written consent, and seller liability are open again. Circuit precedent and properly delegated rules still limit how far a defendant can push.

What did the Supreme Court decide in McLaughlin?

That the Hobbs Act doesn’t make FCC interpretations binding on district courts in enforcement suits, including private TCPA class actions.

The case began with faxes. According to the opinion, McLaughlin sued over unsolicited fax advertisements on behalf of a class. During the case, the FCC’s Amerifactors ruling interpreted “telephone facsimile machine” to exclude online fax services. Following Ninth Circuit precedent, the district court treated that ruling as binding, entered summary judgment for McKesson on the online-fax claims, and decertified the class, leaving McLaughlin with a $6,000 award. Our post on defending junk fax claims covers the underlying claim.

The Supreme Court reversed, 6 to 3. Justice Kavanaugh wrote: “In civil enforcement proceedings under the Telephone Consumer Protection Act, are district courts bound by the Federal Communications Commission’s interpretation of the Act? The answer is no.” The Court explained that “District courts are not bound by the agency’s interpretation, but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.”

Footnote 1 of the opinion defines enforcement proceedings to include “civil suits brought by private parties alleging a defendant’s violation of a statute, regulation, or order.” The holding works both ways. Justice Kagan’s dissent pointed out that a challenge is available “for either a plaintiff or a defendant.” McKesson relied on the FCC ruling and lost the Hobbs Act question. Whether the FCC read the statute correctly was left for remand.

How does McLaughlin fit with Loper Bright?

Loper Bright ended Chevron deference in 2024. McLaughlin closed the Hobbs Act route that could have kept FCC rulings binding anyway.

In Loper Bright Enterprises v. Raimondo, decided June 28, 2024, the Court wrote: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” After Loper Bright, TCPA litigants on both sides still faced the Hobbs Act argument: that an FCC order bound every district court as written once the 60-day window for challenging it in a court of appeals had passed. McLaughlin rejected it.

Loper Bright said agency interpretations can guide a court, and that “interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.” By that test, an FCC position adopted decades after 1991, or one the agency has changed, may get less weight than one it announced at the start and never moved off.

The Court also wrote that “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.” And it said “we do not call into question prior cases that relied on the Chevron framework,” explaining that their holdings “that specific agency actions are lawful” remain subject to statutory stare decisis.

Which FCC positions can a TCPA defendant now contest?

Any FCC interpretation of what the statute’s words mean. Three come up most often.

Whether a text message is a “telephone call” for Do Not Call claims. The private right of action in 47 U.S.C. § 227(c)(5) belongs to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection.” The FCC’s 2003 order said the autodialer ban (an autodialer is equipment that can store or produce numbers with a random or sequential number generator and dial them) “encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls,” and the FCC’s December 2023 order codified Do Not Call protections for texts. In July 2025, the Central District of Illinois held in Jones v. Blackstone Medical Services that “under a plain reading, Section 227(c)(5) of the TCPA does not regulate text messages.” The court also read the 2003 order as addressing autodialed and prerecorded messages under § 227(b), not the Do Not Call provisions. The case is on appeal to the Seventh Circuit. Other district courts disagree, so it’s a live dispute, not a settled defense.

The written-consent requirement for marketing calls and texts. For calls made with an autodialer or an artificial or prerecorded voice (a message recorded in advance or generated by machine), § 227(b)(1) requires “prior express consent.” The FCC’s 2012 order added a written-consent requirement for autodialed or prerecorded telemarketing, reasoning that “the Commission has discretion to determine, consistent with Congressional intent, the form of express consent required.” The rule sits in 47 C.F.R. § 64.1200(a)(2) and (a)(3), with the definition at (f)(9). In January 2025, the Eleventh Circuit vacated the FCC’s 2023 one-to-one and related-topic consent rules in Insurance Marketing Coalition v. FCC, holding that its consent restrictions “impermissibly conflict with the ordinary statutory meaning” of prior express consent. In a footnote, the same opinion said the 2012 written-consent restriction and definition “constitute the FCC’s interpretation” of that phrase, while noting that the 2012 order was not before it. There’s a catch. Because the written-consent requirement is a codified regulation, and § 227(b)(3) lets plaintiffs sue for violating “the regulations prescribed under this subsection,” reading the statute differently isn’t enough. The argument has to be that the regulation goes beyond the FCC’s authority to implement “prior express consent,” the same kind of argument the Eleventh Circuit accepted against the 2023 rule on direct review. I think it’s one of the more promising arguments for businesses whose consent records are oral or recorded but unsigned, though the Eleventh Circuit didn’t decide it.

The scope of seller liability under the Dish ruling. The FCC’s 2013 Dish Network ruling said a seller that doesn’t place calls itself can still be vicariously liable for a telemarketer’s violations “under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.” Paragraph 46 then listed “illustrative examples” of evidence of apparent authority, like approving a vendor’s scripts. Then-Commissioner Pai objected in a separate statement: “It is not the Commission’s place to opine on the proper contours of the federal common law of agency.” After McLaughlin, that guidance is an argument, not a rule. The core idea of vicarious liability isn’t going away, though. In Gomez v. Campbell-Ewald, the Ninth Circuit rested vicarious liability on ordinary tort principles from Meyer v. Holley as well as on the Dish ruling’s interpretation that sellers can be vicariously liable under federal common law principles of agency, which it said “must be afforded Chevron deference.” The opening is in which agency facts a plaintiff must plead and prove.

What still binds a court after McLaughlin?

The statute itself, circuit precedent, and regulations Congress told the FCC to write, so long as they stay inside that delegation.

Circuit precedent. McLaughlin’s footnote 3 says that when a court of appeals has decided a pre-enforcement challenge to an FCC order, a district court in that circuit “may be bound under principles of vertical stare decisis to adhere to the court of appeals holding.” Ordinary circuit precedent binds district courts too, even when it rested on deference. In the Ninth Circuit, Satterfield v. Simon & Schuster held in 2009 that a text is a call under the autodialer provision, § 227(b)(1)(A), after deciding to “afford it deference” to the FCC. District courts in the Ninth Circuit have applied it to Do Not Call claims under § 227(c)(5) as well, though whether a § 227(b) holding controls § 227(c)(5) is itself an argument a defendant can make. In Barton v. Delfgauw, the Western District of Washington held in August 2025 that the Jones argument was foreclosed and that “Satterfield remains law of the circuit,” in a footnote applying the en banc Ninth Circuit’s Miller v. Gammie standard, under which circuit precedent gives way only when it is clearly irreconcilable with intervening higher authority. The Southern District of Florida reached the same result in McGonigle v. Office Depot in November 2025, denying a Rule 12(c) motion and ruling that “this Court will continue to follow existing Eleventh Circuit precedent and holds that a text message is a call for the purpose of the TCPA.” The court acknowledged that the Eleventh Circuit hadn’t directly addressed the question and relied on that court’s statements treating texts as calls. In a footnote, the same judge wrote that on a blank slate the court “would tend to agree with the district courts who have determined that a call does not include a text message.” In some circuits, the defense argument is stronger on the merits than in the trial court.

Rules Congress told the FCC to write. Section 227(b)(2) of the TCPA provides that “The Commission shall prescribe regulations to implement the requirements of this subsection,” and § 227(c) sets up the Do Not Call rulemaking. The private right of action in § 227(c)(5) is built on violations of “the regulations prescribed under this subsection.” Rules like the National Do Not Call Registry (the federal list of numbers whose owners have opted out of telemarketing), the internal do-not-call requirements, and the calling-hour limits in § 64.1200(c) and (d) are issued under the kind of delegation Loper Bright says courts “must respect,” while checking that the agency stayed within it. A challenge must show that a particular rule exceeds the delegation, which is what the Eleventh Circuit asked before it vacated the 2023 consent rules.

The FCC itself. McLaughlin is about courts. The FCC still enforces its rules, and some states, such as Florida, have their own telemarketing statutes. Our post on Florida’s Telephone Solicitation Act covers one of them. Keep complying. The decision is a litigation tool.

FCC positions after McLaughlin, at a glance

How should a business use McLaughlin in a motion?

Frame it as statutory interpretation, attack the weight of the FCC’s view, and plan for the circuit’s precedent.

Start with the element the FCC supplies. If the complaint needs an FCC interpretation to state a claim, such as treating texts as calls for a Do Not Call count, a Rule 12(b)(6) motion or a Rule 12(c) motion for judgment on the pleadings puts the statutory question in front of the court. McLaughlin says a court that disagrees with the FCC decides liability under the correct reading of the statute and doesn’t “determine the validity” of the order, which the Hobbs Act reserves to the courts of appeals. When a codified rule is the obstacle, as with written consent, the argument is that the rule exceeds the FCC’s authority, which McLaughlin’s footnote 2 leaves room for: review may include “whether the rule or order was arbitrary and capricious under the APA or otherwise was unlawful.” Either way, ask the court to decide liability under the correct law, not to declare the order or rule invalid.

Then argue weight, not just text. Use Loper Bright’s factors: when the FCC adopted the position, whether it has been consistent, and whether it rests on factual premises within the agency’s expertise. The judge in McGonigle reasoned in a footnote that telling a call from a text doesn’t take agency expertise. Points like that shrink the respect an FCC reading gets.

If your circuit has a pre-Loper Bright holding that deferred to the FCC, the district court will likely follow it, so raise the argument early to preserve it for appeal. If the issue is close and dispositive, consider asking the court to certify the order for interlocutory appeal under 28 U.S.C. § 1292(b), which requires “a controlling question of law as to which there is substantial ground for difference of opinion.” The district court must also find that an immediate appeal may materially advance the end of the case, and the court of appeals decides whether to hear it. A documented split among district courts helps show the difference of opinion. When the question is already before a higher court, a stay may be another option, covered in our post on TCPA stay motions.

Before you file a McLaughlin argument

1. Put a litigation hold on the call and text logs, platform and dialer data, and consent records for every number in the complaint.
2. Pull the opt-out and internal do-not-call logs with dates.
3. Pull the National Do Not Call Registry scrub records and the registry version dates used for each campaign.
4. Gather vendor and lead-source contracts, message templates, and any recorded or AI-voice files.
5. Talk to a lawyer before answering the complaint or responding to a demand letter, so the statutory argument is raised early, in the answer or a Rule 12 motion, and preserved for appeal.

The firm’s TCPA defense lawyers page summarizes how claims involving fax advertisements and FCC rulings are defended.

Questions businesses ask about McLaughlin and the FCC

Can a plaintiff use McLaughlin against a business?

Yes. Justice Kagan’s dissent made the point directly, and the case itself proves it: McKesson relied on a favorable FCC ruling about online faxes, and the Supreme Court sent the case back so the district court could decide the question on its own. A defense shouldn’t rest on an FCC ruling alone.

Are texts still “calls” under the TCPA in California federal courts?

Generally yes, so far. District courts in the Ninth Circuit have continued to apply Satterfield, which held in 2009 that a text is a call under the autodialer provision, and Barton applied it to a Do Not Call claim in August 2025. As of this post, I’m not aware of a Ninth Circuit decision revisiting Satterfield after Loper Bright or McLaughlin. Raise the issue where it’s dispositive, but build the defense around consent and the opt-out records.

Should we change our consent forms because of McLaughlin?

No. Keep collecting signed written consent for marketing calls and texts. McLaughlin gives a business an argument to make after it’s sued, and it doesn’t change the rules the FCC enforces or the regulations Congress told it to write. An oral-consent defense is worth having in reserve, but a signed record is the cheaper way to win.

If your company is defending a TCPA claim built on an FCC rule

If your company’s TCPA exposure depends on an FCC interpretation, such as texts counted as calls or a written-consent requirement, the statutory argument may be worth raising at the first motion. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims that rely on FCC interpretations of the statute. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The regulation is 47 C.F.R. § 64.1200 (eCFR as of January 5, 2026). Interlocutory appeals are governed by 28 U.S.C. § 1292(b).

The Supreme Court decisions are McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

The appellate decisions are Insurance Marketing Coalition Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009); Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014); and Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).

The district court decisions are Jones v. Blackstone Medical Services, LLC, No. 1:24-cv-01074 (C.D. Ill. July 21, 2025); Barton v. Delfgauw, No. 3:21-cv-05610 (W.D. Wash. Aug. 18, 2025); and McGonigle v. Office Depot, LLC, No. 9:25-cv-80069 (S.D. Fla. Nov. 25, 2025).

The FCC orders are the 2003 TCPA Report and Order (FCC 03-153), the 2012 TCPA Report and Order (FCC 12-21), the 2013 Dish Network Declaratory Ruling (FCC 13-54), and the 2023 TCPA Report and Order (FCC 23-107).

This post is general information about the Telephone Consumer Protection Act and related laws as of January 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.