WRITTEN CONSENT?: New Fifth Circuit Decision Says Congress Never Required It in the First Place!

Greetings TCPAWorld!

As the Czar just teased earlier today while literally driving (dedication, folks), the Fifth Circuit just dropped a HUGE ruling. In Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379, 2026 WL 520620 (5th Cir. Feb. 25, 2026), Chief Judge Jennifer Walker Elrod, writing for a panel that included Judges Clement and Haynes, held that the Telephone Consumer Protection Act (“TCPA”) does not require prior express written consent for prerecorded calls. Yes, you read that right! Not for telemarketing calls, not for informational calls, not for any calls. Oral consent will do just fine. And that, friends, changes everything.

I really need to break this one down in simple terms because the implications here are massive.

Here, Radley Bradford entered into a service-plan agreement with Sovereign Pest, a Texas pest-control company. On that agreement, Bradford provided his cell phone number. He later admitted he gave the number so Sovereign Pest could contact him. During the life of the agreement, Sovereign Pest placed multiple prerecorded calls to Bradford, including calls seeking to schedule “renewal inspections.” In turn, Bradford responded to those calls, scheduled inspections, and, get this, he renewed his service plan four times! Despite all of that, Bradford filed a putative class action alleging Sovereign Pest violated the TCPA by sending him unsolicited prerecorded calls . . . for years without obtaining his “prior express written consent.” Accordingly, the District Court granted summary judgment in favor of Sovereign Pest, and Bradford appealed.

Now here’s where it gets really interesting for avid TCPAWorld followers. On appeal, Bradford asserted that Sovereign Pest’s calls constituted telemarketing and, therefore, required prior express written consent under the FCC’s regulations. But the Fifth Circuit didn’t just reject Bradford’s argument; it went straight at the FCC’s regulatory framework and said the agency got it wrong.

The Court started where all good statutory interpretation starts. Of course, it’s the text. Indeed, the TCPA makes it unlawful to make prerecorded calls to cell phones absent “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1), (b)(1)(A), (b)(1)(A)(iii). That’s what Congress enacted. Notice what’s missing? The word “written.” It’s not there. The statute says “prior express consent”. See Bradford, 2026 WL 520620 at *2.

Next, the Court examined what “express consent” meant when Congress enacted the TCPA. Pulling from Black’s Law Dictionary (6th ed. 1990), the Court found that “express consent” is consent “directly given, either viva voce or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.” Id. In other words, Congress’s use of “express consent” already encompassed both oral and written consent. There was no gap for the FCC to fill.

This brings us to the BIG holding. The Court wrote: “Thus, contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has ‘the prior express consent of the called party.’” See Bradford, 2026 WL 520620 at *2. The Court continued: “The statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent. Contra 47 C.F.R. § 64.1200(a)(2).” Id.

You read that right. That’s the Fifth Circuit explicitly rejecting the FCC’s telemarketing/informational distinction when it comes to the form of consent required. The Court did not eliminate the concept of “telemarketing” itself; rather, it held that the TCPA’s text provides no statutory basis for imposing different forms of consent based on call content.

This is Loper Bright in action! The Court relied on McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146, 155 (2025), and Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 402 (2024), for the proposition that courts must interpret the TCPA’s text “according to ordinary principles of statutory interpretation, without deference to an agency’s reading.” Bradford, 2026 WL 520620 at *2. No Chevron deference. No agency gap-filling. Just the statute. Where Congress spoke clearly, the FCC had no authority to impose a written-consent requirement that does not appear in the text.

As for Bradford himself, the Court found he gave prior express consent when he provided his cell-phone number on the service-plan agreement, expressly stated that he gave his number so Sovereign Pest could contact him, confirmed during later conversations that the company could call his cell, and never once objected to the calls or asked Sovereign Pest to stop calling. See id. at *3. The fact that Bradford renewed the service plan four times only reinforced the court’s conclusion that his consent encompassed renewal-related calls. Id.

Bradford tried to assert in the reply briefing that merely providing a phone number constitutes only implicit, not express, consent. The Court differed in reasoning, and here’s why. First, “[a]rguments raised for the first time in reply are generally forfeited.” Id. (citing Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 745 (5th Cir. 2023)). Second, even on the merits, the argument failed because Bradford didn’t just hand over a phone number; he told them to use it to reach him, confirmed it during subsequent conversations, and never revoked it.

Huge ruling here, my friends.

So what are the key takeaways?

First, for starters, the Fifth Circuit has now held that the TCPA requires only “prior express consent”, whether oral or written, for all prerecorded calls to cell phones, including telemarketing calls. The FCC’s written-consent requirement under 47 C.F.R. § 64.1200(a)(2) is, at least in the Fifth Circuit, contrary to the statute. This is a massive shift for the industry.

Second, Loper Bright and McLaughlin Chiropractic continue to reshape TCPA litigation. Courts are now reading the statute as Congress wrote it, without deferring to the FCC’s regulatory gloss. The written-consent requirement was an FCC creation, not a congressional mandate, and the Fifth Circuit explicitly said so.

Third, providing a phone number in connection with a business relationship, combined with statements indicating the number can be used for contact, constitutes prior express consent — particularly where, as here, the consumer confirms that purpose and never revokes consent.

Lastly, this raises a big question: will other circuits follow? The Fifth Circuit squarely holds that written consent is not required for telemarketing calls under the TCPA. Bradford is among the first appellate TCPA decisions to squarely confront the FCC’s written-consent rule after Loper Bright, setting the stage for either rapid adoption by other courts or a clean circuit split that could send this issue right back to the Supreme Court!

Shockwaves through TCPAWorld this Wednesday! Stay tuned for more to come.

As always,

Keep it legal, keep it smart, and stay ahead of the game

Talk soon!