CAREFUL: Yes, the Fifth Circuit Court of Appeals Just Held You Don’t Need Written Consent to Make Marketing Calls– But Here’s What it Actually Means

So Troutman Amin, LLP announces the addition of William Fife, III and the opening of a Dallas, TX office and the following week the Fifth Circuit strikes down the TCPA’s express written consent rule.

Coincidence? 🙂

There was a time, perhaps, when stunning and sudden changes were striking and unusual in the wider world.

TCPAWorld has always been different- subject to shifting surfaces and earth moving about beneath ones feet without warning.

But usually when big change comes there is some profound acknowledgement of the way things were and a stated intention to depart from the status quo for a new and brighter tomorrow.

Yesterday’s stunning ruling from the Fifth Circuit Court of Appeals was none of that. In a ruling entirely devoid of sentimentalism that scarcely acknowledged the law as it has been since 2013, the Court swept away core components of U.S. telemarketing law in a flash.

And now everything the FCC has ever done in connection with the TCPA is in question.

But let’s discuss what happened.

As every TCPAWorld reader knows robocalls cannot be made for marketing purposes without express written consent– so said the FCC in 2013, and hundreds of cases since.

Well… no more.

TCPAWorld broke the news yesterday the Fifth Circuit in Bradford v. Sovereign Pest Control 2026 WL 520620 (5th Cir. Feb. 25, 2026) held the TCPA does not actually require written consent for marketing calls–so the FCC’s rulings were wrong and need not be followed. In doing so it scarcely mentioned the FCC’s bedrock ruling from 2013 that such calls must be made with written consent. And it did not mention the hundreds of cases–including appellate court rulings– that have so held.

Instead it applied a simple statutory review and stopped.

The analysis is wickedly efficient:

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.” 47 U.S.C. § 227(b)
(1), (b)(1)(A), (b)(1)(A)(iii). 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).

That’s it.

Two sentences.

And all the thousands of pages of analysis and hand wringing over, the format and content requirements are throttled.

And replaced with a single paragraph of guidance:

“[P]rior express consent” encompasses both oral and written consent for both telemarketing and informational calls. When
Congress enacted the TCPA, “express consent” meant consent that is “directly given, either viva voce or in writing. It is
positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.” Express consent, Black’s
Law Dictionary (6th ed. 1990)

That’s your new standard for consent in the Fifth Circuit. It doesn’t even match the express consent formulations in the Ninth Circuit or Eleventh Circuit.

To be clear this wasn’t an unforeseeable result. In some corners TCPA practitioners have been discussing this very possibility for years. Indeed, one might even see a ruing like this as inevitable.

But the callousness with which the knife was wielded here. The cold efficiency feels thoughtless. Capricious even. Just leaves you with a sense of unease. Like anything could change at any moment now and we won’t even be entitled to an explanation.

Perhaps this is the new status quo.

Let’s talk takeaways:

1. Callers operating in the Fifth Circuit theoretically no longer need written consent to make marketing robocalls. But they still need clear and express consent. And you can expect the courts are going to require strict proof of oral consent– so get those call recordings going (but make sure you’re giving proper disclosures);
2. Then again state level requirements STILL require express written consent anyway (see e.g. Texas Business & Commerce Code Chapter 305) so this may end up being a trap for the unwary;
3. Courts elsewhere in the country are unlikely to follow this ruling. So get ready for another massive split of authority. If you are calling from (or to) a jurisdiction outside the Fifth Circuit would highly advise you continue capturing full express written consent for the time being;
4. Literally any FCC ruling might be thrown out by any court at any moment. You HAVE to have an understanding of both FCC regs but also the (still somewhat limited) body of law interpreting statutory phrases directly;
5. Reiterating, this ruling might not have the biggest practical effects because of the limited geographic reach here– most callers should NOT change their practices–but the shift the ruling signals is very real. We may FINALLY have reached a high water mark for TCPA litigation;
6. Then again, Congress may respond to this with an update to the TCPA to require written consent–or something even crazier. So we will have to wait and see; but mostly
7. You should call us here at Troutman Amin, LLP to discuss what all these new developments mean for your business. We can help you navigate both at the state and federal level– and you CANNOT afford to get this wrong!

Will definitely be discussing all these new developments during my 4 HOUR TCPA session at Law Conference of Champions IV. Deepest dive of the year. You will learn things you will not learn ANYWHERE ELSE. I guarantee it. Will you be there?

Prices JUMP Monday!!! Buy now and save a ton. 

Chat soon.