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Since our last TCPA update, the biggest development was the Supreme Court’s ruling in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., which we wrote about <a href="/insights-events/scotus-ruling-tips-the-scales-in-favor-of-district-courts-not-the-fcc-when-it-comes-to-interpreting-tcpa/">here</a>, which established that federal courts are not bound by the FCC’s interpretation of the TCPA.&nbsp; In the wake of McLaughlin, courts and litigants alike have wrestled with how much deference (if any) to give to the FCC’s many regulations interpreting the TCPA, as parties are now free to challenge agency rulings that they believe are not in line with the law, and district courts can independently interpret the TCPA.&nbsp; We summarize here the major developments since our last update, listed in alphabetical order by topic area.

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ATDS (Automatic Telephone Dialing System)

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In Anthony v. Nat’l Republican Cong. Comm., 2025 WL 2741798, *3 (3d Cir. Sept. 26, 2025), the Third Circuit reaffirmed its previous holding that in order to plead the use of an ATDS, the plaintiff must plead facts demonstrating the random or sequential generation of a list of phone numbers. Accordingly, the court affirmed dismissal of a TCPA claim.

In Laboratory Corporation of America, dba Labcorp, v. Luke Davis, et. al., the Supreme Court granted certiorari to determine whether a class is able to proceed under Federal Rule of Civil Procedure 23 when there are uninjured class members. But the Court then reversed course, dismissing the case in a summary order, finding that certiorari was improvidently granted. Thus, there remains a circuit split on whether standing can be addressed after certification and if the number of people who are uninjured can be more than de minimis. In a dissent to the dismissal, Justice Kavanaugh expressed his fear that overinflated classes would coerce settlement and that the class mechanism as currently conceived was inconsistent with Rule 23’s requirement that common questions predominate. We share these concerns, but clarity from the Supreme Court will have to wait for another day.

In another Third Circuit decision, the court in Perrong v. Bradford, 2025 WL 2825982, *10 (3d Cir. Oct. 6, 2025), held that the TCPA does not prevent state legislators from making robocalls connected to legitimate government functions.  The court held that the TCPA’s use of the term “person” does not extend to the sovereign, which in this case included a state house representative.  Accordingly, the court held that the TCPA’s “robocall restriction, by using the general term ‘person,’ does not encompass calls made by state legislators when exercising legitimate functions of their office for the public benefit.”  Id.

One area where we are seeing a new wave of litigation (but not yet a slew of reported decisions) is in the context of keyword avoidance.  These cases involve plaintiffs who responded to text messages with words like “no,” “remove,” “exit,” and even the letter “S,” but continued to be contacted because they did not use the words “stop” or “quit.”  The litigation is built on a 2024 FCC rule that allows consumers to opt out of future message by any reasonable means, regardless of the defendant’s requested means.  But in line of McLaughlin, it remains to be seen whether this rule will carry the day.  In the meantime, businesses should try to avoid litigation by allowing opt outs using a broad array of terms.

As an example of the type of issues being addressed anew in the wake of McLaughlin, in Isaacs v. USHEALTH Advisors, LLC, 2025 WL 2268359 (N.D. Ga. Aug. 7, 2025), the court interpreted “residential subscribers” in the TCPA to include cell phones.  This is a departure from the long-settled understanding (based on FCC orders) that “residential subscribers” meant landline users.  But the court held that in light of McLaughlin it must independently evaluate the issue.  And after reaching its conclusion, the court denied the defendant’s motion to dismiss.

TCPA Turnstile: Living in a Post-McLaughlin World (TCPA Update Vol. 21)

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