Supreme Court's McLaughlin Decision Creates New Uncertainty for Healthcare Text Message Compliance

The Supreme Court's decision in McLaughlin Chiropractic Associates v. McKesson Corporation seismically shifts how courts will evaluate FCC interpretations of the TCPA, creating new compliance challenges for healthcare companies that communicate with patients, consumers, and others via text message.

The court's 6-3 decision held that district courts are not bound by FCC orders interpreting the TCPA in civil enforcement proceedings. Consistent with SCOTUS's 2024 decision in Loper Bright Enterprises v. Raimondo, the high court’s McLaughlin ruling fundamentally changes how courts will analyze rules like text messaging consent requirements.

Impact on Healthcare Text Messages

Healthcare companies have historically relied on FCC orders interpreting "calls" under the TCPA to include text messages, requiring prior express written consent (i.e., affirmative action taken to demonstrate consent such as by checking an unticked box) for marketing texts but allowing informational texts with more limited prior express consent (i.e., permission to be contacted via text messaging by providing phone number). The McLaughlin decision means courts can now independently interpret whether the TCPA's restrictions on "calls" apply to text messages at all as text messaging technology did not exist in 1991 when Congress passed the TCPA.

This ruling creates particular uncertainty around appointment reminders and other informational healthcare texts. Previous FCC guidance allowed these messages with prior express consent rather than the higher "express written consent" standard required for marketing messages. However, district courts can now reach different conclusions about consent requirements, potentially creating a patchwork of standards across jurisdictions.

The decision arrives as healthcare organizations increasingly rely on text messaging to communicate with patients about appointments, prescription refills, preventive care reminders, and other healthcare matters. The ruling may require organizations to re-evaluate their consent practices, especially for automated text messaging programs.

A One-Two Punch of Regulatory Uncertainty

The McLaughlin decision builds on last year's landmark Loper Bright ruling which ended the long-standing requirement for courts to defer to federal agencies' reasonable interpretations of ambiguous statutes (known as the Chevron deference). Under Loper Bright, courts may now independently determine what a statute means using ordinary principles of statutory interpretation.

Together, these decisions create a one-two punch against regulatory certainty. Not only can district courts ignore FCC interpretations of the TCPA, but they also no longer need to defer to the agency's expertise when analyzing the statute's meaning. This combination significantly increases litigation risk for healthcare organizations relying on established FCC guidance about text message consent requirements.

Practical Implications for Healthcare Organizations

In light of McLaughlin, healthcare companies should consider several key factors when evaluating their text messaging compliance programs:

• Organizations may want to obtain express written consent for all text messages, not just marketing communications. While this approach exceeds current FCC requirements, it provides maximum protection against TCPA liability given the new uncertainty about how courts in different jurisdictions will interpret consent requirements.
• Organizations should carefully document their basis for believing they have sufficient consent for each type of text message they send. This documentation becomes more important as courts may now apply different standards when evaluating consent.
• Organizations should monitor district court decisions interpreting the TCPA's application to text messages. Different courts may reach different conclusions requiring organizations to adjust their practices based on jurisdiction.
• Organizations should review their text message opt-out mechanisms to ensure they are clearly disclosed and promptly honored. While specific opt-out requirements may vary by jurisdiction under the McLaughlin decision, maintaining robust opt-out processes remains critical for compliance.

Looking Ahead

The McLaughlin decision likely marks the beginning of a period of increased uncertainty in TCPA compliance. Healthcare organizations can anticipate more litigation testing the boundaries of text message consent requirements as plaintiffs' attorneys pursue this new ability to challenge long-standing FCC interpretations.

Congress could act to clarify the TCPA's application to text messages and establish uniform consent standards. However, absent legislative intervention, healthcare organizations face a more complex compliance landscape requiring careful attention to evolving judicial interpretations.

The decision may also prompt the FCC to issue new guidance attempting to create uniformity in text message requirements. However, under McLaughlin and Loper Bright, such guidance would not bind courts and therefore potentially limit its practical value for compliance purposes.

Healthcare organizations should work closely with legal counsel to evaluate their text messaging programs and consent practices in light of this evolving legal framework. While the McLaughlin decision creates new compliance challenges, text messaging remains a valuable tool for patient communication when implemented with appropriate safeguards and consent processes.