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In Fifth Circuit Court of Appeals in Bradford v. Sovereign Pest Control 2026 WL 520620 (5th Cir. Feb. 25, 2026) held the Telephone Consumer Protection Act (TCPA) does not require prior express written consent for auto-dialed or pre-recorded calls.

The United States Court of Appeals for the  Fifth Circuit serves as the federal appellate court for Louisiana, Mississippi, and Texas.

The court’s analysis started by reviewing the text of the statutory language examining what “express consent” meant when Congress enacted the TCPA.

“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).”

In terms of guidance the court goes on to say, “[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 voice 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)

The court found that the TCPA’s text provides no statutory basis for imposing different forms of consent based on call content.  Congress spoke clearly, and therefore the FCC had no authority to impose a written-consent requirement that does not appear in the text of the statute.

The court appears to conclude that “written consent” was concocted by the FCC because it is not found to be a TCPA congressional mandate.

So, does that mean any prerecorded cell phones and telemarketing calls made exclusively within the Fifth Circuit require express consent but not necessarily written consent to make robocalls – unless of course written consent is required by state law?

And what about all the FCC rules related to the TCPA where the FCC in 2013 and beyond require telemarketing calls to obtain express written consent?  What happens with all of these rulings?

So, does this ruling completely reject the FCC’s telemarketing/informational distinction when it comes to the form of consent required? No, but it did hold that the TCPA’s text provides no statutory basis for imposing different forms of consent based on call content.

From a practical perspective what does this ruling mean for companies marketing exclusively within the Fifth Circuit?  What about companies marketing across multiple court boundaries?  Will other circuit courts follow suit? Will this eventually land at the Supreme Court?

Stay tuned.  More to follow?