The TCPA Paradox: Defense-Friendly Decisions and a Surge in Lawsuits

​As discussed in prior articles, TCPA lawsuits surged dramatically in 2025, and 2026 filings have already outstripped them. More companies than ever are finding themselves defending TCPA claims, and although it likely serves as cold comfort to those unlucky defendants, the fact is, there has rarely been a better time to defend a TCPA lawsuit.

This article examines how the TCPA landscape shifted from the plaintiff-favorable uncertainty of 2020 to the more defense-oriented environment of 2026. It traces the decisions that narrowed autodialer liability, curtailed FCC-driven consent restrictions, and restored courts’ authority to independently interpret the statute, while explaining the apparent paradox that TCPA litigation continues to rise as plaintiffs pursue DNC, prerecorded-voice, consent, opt-out, and state-law theories.

2020: ATDS Claims Predominated

In 2020, the principal federal litigation risk arose under Section 227(b)(1)(A), particularly where a plaintiff alleged calls or texts to a cellular telephone number using an automatic telephone dialing system (“ATDS”). The courts of appeals were materially divided on the ATDS definition: the Ninth Circuit’s interpretation, for example, treated equipment that stored numbers and dialed them automatically as potentially covered even if it did not randomly or sequentially generate the numbers themselves.

That broad approach captured much ordinary business technology—customer-notification platforms, text platforms, predictive dialers, and systems dialing lists of existing customer or lead telephone numbers. The resulting uncertainty made dismissal difficult, expanded discovery into vendors and dialing technology, and gave plaintiffs significant settlement leverage even where a defendant had not used a traditional random- or sequential-number generator.

The statutory-damages structure amplified the exposure. A successful plaintiff could seek $500 per violation, potentially trebled for willful or knowing conduct, and each call or text could be alleged as a separate violation; aggregated across a class, even a technically questionable claim could carry outsized potential damages.

The regulatory setting also benefited plaintiffs. Before the ensuing Supreme Court decisions, lower courts often treated final FCC TCPA interpretations as effectively binding in collateral private actions under the Hobbs Act. That meant defendants could be bound by broad agency views even when they had strong statutory-text arguments against them.

Barr v. American Association of Political Consultants, decided July 6, 2020, initially created additional uncertainty by holding the 2015 government-debt exception unconstitutional on First Amendment grounds. Although the Supreme Court severed the exception rather than invalidating the core robocall restriction, the case reinforced the unsettled nature of TCPA litigation at the time.

2021-2026: The Balance Shifts

The first major shift in the TCPA litigation landscape came with Facebook, Inc. v. Duguid, 592 U.S. 395 (2021). The Supreme Court unanimously held that a system qualifies as an ATDS only if it has the capacity either to store telephone numbers using a random or sequential number generator or to produce them using such a generator.

That interpretation rejected the broader theory that equipment is an ATDS merely because it stores telephone numbers and automatically dials or texts them. As a practical matter, it sharply reduced Section 227(b) exposure for many modern platforms that dial from customer, prospect, or uploaded lead lists rather than generating telephone numbers randomly or sequentially.

In November of 2023, the Federal Communications Commission gave plaintiffs’ attorneys an early Christmas gift when it released a Report and Order that included a new “one-to-one” consent rule that would have required lead generators to secure consumer consent for one seller at a time, and limited marketing communications to matters “logically and topically” tied to the consumer’s original interaction; an ambiguous standard that would have cultivated litigation.

Originally scheduled to take effect in the middle of 2025, the rule was stayed pending review. Then, on January 24, 2025, the Eleventh Circuit decided Insurance Marketing Coalition, Ltd. v. FCC. The court vacated the FCC’s 2023 “one-to-one consent” and “logically and topically associated” consent requirements, concluding that the agency had exceeded its statutory authority by adding restrictions beyond the TCPA’s ordinary meaning of “prior express consent.” The FCC subsequently repealed the vacated provisions and reinstated the prior consent framework.

Then, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), the Supreme Court held that the Hobbs Act does not require district courts in TCPA private suits or civil-enforcement cases to treat FCC statutory interpretations as binding. Courts must independently determine the best reading of the TCPA, while giving FCC views only “appropriate respect.” The McLaughlin holding has substantial defensive significance. It gives litigants a direct path to challenge plaintiff-favorable FCC interpretations on statutory grounds, rather than treating an agency order as dispositive simply because no timely direct Hobbs Act petition was filed.

On February 25, 2026, the Fifth Circuit applied McLaughlin in Bradford v. Sovereign Pest Control of TX, Inc., and held that the TCPA does not require prior express written consent for any category of autodialed or prerecorded call, including telemarketing calls. Instead, oral consent satisfies the statute. The decision explicitly rejected the FCC's longstanding regulatory framework that distinguished between "prior express consent" (sufficient for informational calls) and "prior express written consent" (required for telemarketing), declaring that the distinction had no basis in the text Congress enacted. This decision made consent an easier issue to prove in Texas, Louisiana, and Mississippi.

Finally, the Seventh Circuit’s 2026 decision in Steidinger v. Blackstone Medical Services held that text messages are not “telephone calls” within the private right of action in Section 227(c)(5). In Illinois, Indiana, and Wisconsin, a plaintiff therefore cannot maintain a private National DNC claim based solely on unwanted marketing texts.

Why Defendants are Better Positioned Today

A TCPA defendant in 2026 has materially stronger threshold arguments than it did in 2020. The plaintiff must now do more than merely allege that a defendant used a modern automated platform; for an ATDS theory, the plaintiff must plausibly connect the challenged technology to random or sequential number generation as required by Duguid.

Defendants also have more room to litigate the statute itself. Following McLaughlin, arguments that an FCC order overreads “call,” “consent,” “advertisement,” “telephone solicitation,” or a statutory private remedy are no longer categorically foreclosed by the agency’s prior interpretation.

And companies using lead-generation or comparison-shopping models avoided a significant new compliance burden after Insurance Marketing Coalition. The vacated one-to-one rule would have restricted a consumer’s ability to provide consent to multiple sellers through a single lead form, notwithstanding clear disclosure and affirmative assent.

To be clear, these developments do not make defending a TCPA lawsuit an easy task. Defendants must still overcome significant hurdles, and prerecorded-voice and artificial-voice claims, DNC claims involving actual voice calls, alleged failures to honor revocation or company-specific do-not-call requests, and claims under state telemarketing laws likely remain viable even when an ATDS claim fails.

Why is TCPA Litigation on the Rise?

Although legal developments over the past six years have made the TCPA litigation landscape friendlier for defendants, the 2026 filing data make it clear that this has into reduced TCPA litigation volume. Instead, TCPA filings have soared to uncomfortable new heights. At least 1,797 new TCPA lawsuits were filed in the first six months of 2026, compared to 1384 during the same period in 2025, which represents an astonishing 29.12% year-over-year increase. So what is the likely explanation for this apparent paradox?

• Plaintiffs Changed Theories: Rather than exiting the field after Duguid, plaintiff attorneys simply switched gears, pleading prerecorded-voice, artificial-voice, DNC, internal DNC, consent-revocation, and state-law claims rather than rely exclusively on ATDS allegations.
  
• Expanded Text Volume: Businesses increasingly use texts for lead follow-up, account communications, reminders, promotions, and customer engagement. More messages create more opportunities for consent-chain disputes, opt-out failures, wrong-number claims, and alleged DNC violations.
  
• Class-Action Economics: From January through June of 2026, class actions accounted for 1408 of 1797 TCPA cases, which represents over 78% of all filings. No defense-friendly ruling can change the stark economics of TCPA class actions- statutory damages, the availability of trebling, and the prospect of large classes can sustain aggressive filing even where individual claims face legal uncertainty.
  
• Multiple DNC Claims Remain Available: Plaintiffs can pursue theories based on alleged calls to National DNC Registry numbers, failure to maintain an internal DNC process, or failure to honor a stop request, thus avoiding Duguid’s central limitation.
  
• State Laws Fill Federal Gaps: As federal Section 227(b) litigation narrows, plaintiffs increasingly assess state mini-TCPA laws, state DNC statutes, wiretap or recording claims, consumer-protection statutes, and state-law claims aimed at automated texts or calls.
  
• Operational Compliance Failures: Many claims arise from incomplete suppression-file propagation, vendor handoffs, stale lead data, ambiguous disclosures, inadequate consent records, or delayed opt-out processing. Judicial narrowing of the statute does not cure those execution failures.

The Bottom Line: TCPA Litigation Remains Hugely Profitable for Plaintiffs

Despite defense-friendly legal developments over the past few years, TCPA litigation remains enormously profitable for plaintiffs’ counsel because the statute’s per-violation damages can scale dramatically in a class action: the TCPA generally permits $500 per unlawful contact, and courts may increase awards to $1,500 per violation for willful or knowing conduct. A campaign involving thousands of calls or texts can therefore create settlement exposure far exceeding actual consumer harm.

Recent defense-friendly rulings narrowed certain theories—especially ATDS claims—but did not eliminate the most litigable fact patterns. Plaintiffs have shifted toward DNC, prerecorded/artificial-voice, consent, revocation, opt-out, wrong-number, and state-law claims, which frequently turn on operational records and individualized compliance failures rather than on whether dialing equipment qualifies as an ATDS.

The economics also remain favorable to plaintiffs: statutory damages reduce the need to prove actual loss, a single named plaintiff can seek relief on behalf of a large class, and the cost of discovery into dialing technology, vendor practices, consent capture, suppression, and opt-out processes creates substantial settlement pressure. This is why putative class actions comprised 78% of TCPA filings during the first half of 2026, illustrating the continued centrality of aggregation to the plaintiffs’ bar’s business model.