On February 25, 2026, the United States Court of Appeals for the Fifth Circuit issued what may be the most consequential appellate decision on consent under the Telephone Consumer Protection Act ("TCPA") since the statute's enactment in 1991. In Bradford v. Sovereign Pest Control of TX, Inc., (5th Cir. Feb. 25, 2026), a three-judge panel held that the TCPA does not require prior express written consent for any category of autodialed or prerecorded call, including telemarketing calls. Instead, oral consent satisfies the statute.
The decision explicitly rejects the FCC's longstanding regulatory framework that distinguished between "prior express consent" (sufficient for informational calls) and "prior express written consent" (required for telemarketing), declaring that the distinction has no basis in the text Congress enacted.
Bradford Factual and Procedural Background
Plaintiff Radley Bradford entered into a two-year pest-and-termite-control service plan agreement with Sovereign Pest Control of TX, Inc. ("Sovereign Pest") in 2017. When he signed the agreement, the Plaintiff provided his cell phone number so Sovereign Pest could contact him to schedule annual inspections. Over the next several years, Sovereign Pest placed approximately 24 prerecorded calls to the plaintiff’s cell phone.
The Plaintiff responded to those calls, scheduled inspections, and renewed his service plan four times. He did not object to the calls or ask Sovereign Pest to stop calling during any of the initial or renewal terms. Yet in February of 2023, he filed a putative class action in the Southern District of Texas, alleging that Sovereign Pest's 24 prerecorded renewal-inspection calls were telemarketing calls made without his prior express written consent in violation of the TCPA.
The district court granted summary judgment for Sovereign Pest, ruling that the calls were "informational" rather than telemarketing, as they related to an existing contractual obligation (scheduling a free annual inspection) and did not encourage the purchase of goods or services. Because the calls were informational, the court held, they required only "prior express consent," not "prior express written consent," and the Plaintiff had provided that consent by giving his phone number on the service agreement. The Plaintiff appealed.
The McLaughlin Intervening Event
On June 20, 2025, while the appeal was pending, the Supreme Court decided McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., ruling that the Hobbs Act does not bind district courts in private civil enforcement proceedings to a federal agency's interpretation of a statute. Combined with the Court's 2024 decision in Loper Bright Enterprises v. Raimondo, which overruled Chevron deference, McLaughlin freed courts to independently interpret the TCPA's text without deferring to FCC orders or regulations.
The Fifth Circuit ordered supplemental briefing on how McLaughlin and Loper Bright affected the appeal. Sovereign Pest argued that the statutory text of the TCPA only requires "prior express consent" not “prior express written consent” for all calls, while the Plaintiff maintained that telemarketing calls require written consent under the FCC's regulations.
Analysis and Ruling
The court began its analysis with the statutory text. 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service” (emphasis added).
The court identified what it called the critical absence: the word "written" does not appear in the statute. In other words, Congress said "prior express consent." It did not say "prior express written consent."
The court next examined the meaning of "express consent" at the time Congress enacted the TCPA in 1991. Citing Black's Law Dictionary (6th ed. 1990), the court found that "express consent" is defined as consent "directly given, either viva voce or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning."
This definition encompasses both oral and written consent by its very terms. The court concluded that Congress, by using "express consent," already captured both modalities. There was no ambiguity for the FCC to resolve and no statutory gap for the agency to fill.
The court grounded its analysis in the Supreme Court's recent deference-eliminating precedents. Citing McLaughlinand Loper Bright, the panel reiterated that courts "must" interpret the TCPA's text "according to ordinary principles of statutory interpretation, without deference to an agency's reading." Because Congress clearly only required "prior express consent," the FCC had no authority to impose a written-consent requirement that does not appear in the statute.
The Core Holding
The court then delivered the central holding:
"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… The statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent."
This language explicitly rejects the FCC's 2012 regulation 47 C.F.R. § 64.1200(a)(2) that required "prior express written consent" for telemarketing calls placed to cell phones using an autodialer or prerecorded voice. The court held that the FCC's telemarketing/informational distinction, at least as it pertains to the form of consent required (oral vs. written), has no statutory basis.
Having established the legal framework, the court found that Bradford gave prior express consent. He provided his cell phone number on the service-plan agreement, expressly stated that he gave the 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. That he renewed the service plan four times only reinforced the conclusion that his consent encompassed renewal-related calls.
Historical Context: The FCC's Written-Consent Framework
To appreciate the magnitude of Bradford, it helps to understand the regulatory regime it disrupts.
- 1992: Oral Consent Was Sufficient: When the FCC first implemented the TCPA in 1992, it interpreted "prior express consent" to mean that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." Under this framework, oral consent or even the act of voluntarily providing a phone number in a transactional context was sufficient for all calls, including telemarketing.
- 2012: The Written Consent Requirement: In 2012, the FCC adopted a rule requiring "prior express written consent" for telemarketing calls to cell phones made using an autodialer or prerecorded voice. The regulation defined "prior express written consent" as a written agreement, bearing the consumer's signature, that clearly authorizes the caller to deliver telemarketing messages using an autodialer or prerecorded voice, and that includes the telephone number to which such messages may be sent. The 2012 rule created the two-tier consent framework that has governed TCPA compliance for over a decade: "prior express consent" (oral or implied by providing a number) for informational calls, and "prior express written consent" (a signed written agreement meeting specific requirements) for telemarketing calls.
- 2023-2025: One-to-One Consent Order and Its Demise: In 2023, the FCC attempted to further tighten consent by adopting a "one-to-one" consent rule requiring consumers to consent to only one seller at a time and requiring that consented-to calls be "logically and topically associated" with the interaction that prompted the consent. The Eleventh Circuit vacated this rule in Insurance Marketing Coalition Ltd. v. FCC, (11th Cir. Jan. 24, 2025), holding that the restrictions "impermissibly conflict with the ordinary statutory meaning of 'prior express consent.'" The FCC subsequently declined to challenge the ruling and issued a final rule reverting to the pre-2023 definition.
The Bradford ruling goes further than Insurance Marketing Coalition. The Eleventh Circuit struck down the additionsthe FCC layered onto the written-consent requirement but expressly declined to address whether the written-consent requirement itself exceeds the FCC's authority. The Fifth Circuit, by contrast, squarely holds that it does.
The Practical Implications of the Bradford Ruling
The most immediate takeaway is that, within the three states that comprise the Fifth Circuit (Texas, Louisiana, and Mississippi), callers no longer need to obtain a signed, written consent agreement to place telemarketing calls using an autodialer or prerecorded voice. Oral consent that is “positive, direct, unequivocal" will suffice for any category of call, informational or telemarketing.
For businesses that rely on phone-based marketing, this substantially lowers the compliance burden. Companies operating call centers or conducting outbound sales campaigns within the Fifth Circuit's jurisdiction may now defend TCPA claims by showing clear oral consent, rather than producing a signed written agreement.
Telemarketing/Informational Distinction: While the Fifth Circuit did not eliminate the concept of telemarketing itself, it held that the TCPA's text provides no basis for imposing different forms of consent based on call content. If both telemarketing and informational calls require only "prior express consent," and if that consent may be oral or written, then the practical consequence of classifying a call as "telemarketing" is significantly diminished, at least as far as consent is concerned.
This is a meaningful shift. Under the prior regulatory framework, the telemarketing vs. informational distinction was often dispositive in TCPA litigation because it determined whether the caller needed a signed written agreement or could rely on an oral or implied consent. Bradford neutralizes that distinction with respect to the form of consent.
Recordkeeping and Evidentiary Considerations: Although oral consent is now legally sufficient in the Fifth Circuit, businesses should not abandon written-consent practices entirely. As a practical matter, written consent remains far easier to prove. In the absence of a signed agreement, a defendant asserting oral consent will need to present credible evidence, such as call recordings, CRM notes, testimony, or other documentation sufficient to demonstrate that clear, affirmative consent was given before the calls were made. A bare assertion that the consumer "probably consented" will not suffice; the consent must still be "express," meaning positive, direct, and unequivocal.
Impact on Lead Generation: The lead-generation industry has historically relied on web forms and click-to-consent disclosures to satisfy the written-consent requirement. Bradford does not eliminate the value of those tools, but it does suggest that alternative consent-collection methods, including recorded verbal consent during inbound calls, IVR-based consent, or consent documented through agent notes, may now be viable defenses, at least in the Fifth Circuit.
Limitations of the Bradford Ruling
The Fifth Circuit's decisions are binding on federal district courts in Texas, Louisiana, and Mississippi. For TCPA defendants sued in those states (or in any federal court within those states), Bradford provides direct, controlling authority that oral consent is sufficient for all autodialed or prerecorded calls, including telemarketing calls. Given that the Southern District of Texas is one of the highest-volume TCPA jurisdictions in the country, the practical impact is substantial.
Outside the Fifth Circuit, Bradford is persuasive authority only. District courts in other circuits are free to follow or reject its reasoning. That said, Bradford does not exist in a vacuum. It aligns with and reinforces the trajectory established by the Eleventh Circuit in Insurance Marketing Coalition (which described "prior express consent" as encompassing consent "clearly and unmistakably granted by actions or words, oral or written") and by the Supreme Court in McLaughlin and Loper Bright (which eliminated deference to FCC interpretations). Courts in other circuits already grappling with these precedents will likely view Bradford's textual analysis as highly persuasive.
Also, keep in mind that the Bradford ruling addresses only the form consent must take (oral vs. written). It does not hold that consent is unnecessary, nor does it dilute the requirement that consent be "prior" and "express." The court emphasized that the Plaintiff did far more than passively provide a phone number: he stated the number was for contact purposes, confirmed it in later conversations, and never revoked it.
Businesses should not read Bradford as a license to call anyone whose phone number they happen to possess. The consent must still be affirmative, clear, and given before the calls are placed.
