Publication
Fifth Circuit Holds TCPA Does Not Require Written Consent for Telemarketing Calls
On February 25, 2026, the U.S. Court of Appeals for the Fifth Circuit issued a significant decision in Bradford v. Sovereign Pest Control of TX, Inc. interpreting the consent requirements under the Telephone Consumer Protection Act (TCPA). The court held that the TCPA does NOT require prior express written consent for automated or prerecorded telemarketing calls to cell phones. Instead, the statute permits either oral or written consent, so long as that consent is “prior express consent” of the called party under 47 U.S.C. § 227(b)(1). In reaching this conclusion, the Fifth Circuit rejected the stricter requirement contained in the 47 C.F.R. § 64.1200(a)(2), which had required prior express written consent for telemarketing robocalls. According to the court, nothing in the statutory text distinguishes telemarketing calls from informational calls with respect to the form of consent. The TCPA simply permits calls made with the “prior express consent of the called party,” and the statute provides no basis for requiring written consent for telemarketing calls but not for other automated or prerecorded calls.
The court replaced the FCC’s formulation with a single paragraph of guidance explaining the meaning of the statutory phrase “prior express consent.” According to the decision, prior express consent encompasses both oral and written consent for both telemarketing and informational calls. Looking to historical legal definitions in effect when Congress enacted the TCPA, the court explained that “express consent” means consent that is directly given, either viva voce or in writing, and that it must be positive, direct, and unequivocal, requiring no inference or implication to supply its meaning. The court relied on the definition in Black’s Law Dictionary (6th ed. 1990), which describes express consent as “positive, direct, unequivocal consent.”
Key Takeaways
- Written consent may no longer be required in the Fifth Circuit.
Entities placing automated or prerecorded marketing calls within the Fifth Circuit’s jurisdiction (Texas, Louisiana, and Mississippi) theoretically no longer need written consent to satisfy the TCPA. However, callers must still obtain clear and express consent, whether oral or written. - Documentation of oral consent will be critical.
Because the court emphasized that consent must be “positive, direct, [and] unequivocal,” courts are likely to demand strong proof of oral consent. Companies relying on oral consent should ensure call recordings and detailed consent logs are maintained, while also complying with any applicable call-recording disclosure requirements. - State laws may still require written consent.
The ruling does not displace state telemarketing statutes. For example, the Texas Business & Commerce Code Chapter 305 still requires express written consent in certain circumstances. As a result, companies operating in Texas or calling Texas consumers may still need written consent despite the federal ruling. - The decision creates further regulatory fragmentation.
Other federal courts are not bound by the Fifth Circuit’s interpretation. Courts in other jurisdictions—such as those governed by the U.S. Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the Eleventh Circuit—apply different formulations of TCPA consent. Businesses operating nationwide should expect continued inconsistency across jurisdictions. - FCC regulations remain vulnerable to judicial review.
The ruling underscores that courts may invalidate or narrow agency regulations when they conflict with statutory text. Companies must therefore evaluate compliance under both FCC regulations and evolving case law interpreting the TCPA itself.
Practical Implications
Although the decision signals a meaningful shift in TCPA jurisprudence, its practical impact may be limited due to the Fifth Circuit’s geographic scope and the continued force of state laws and other federal precedents. For most nationwide calling programs, the safest course remains capturing prior express written consent that satisfies both FCC regulations and state-law requirements.
Nonetheless, the ruling highlights a growing judicial willingness to scrutinize agency interpretations of the TCPA and may foreshadow additional litigation and potential circuit splits over the scope of consent required for automated and prerecorded calls. Businesses engaged in telemarketing or large-scale outbound calling should closely monitor developments and reassess consent collection and recordkeeping practices accordingly.
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