Fifth Circuit affirms TCPA allows oral consent for all pre-recorded calls, striking at FCC's written-consent requirement for telemarketing robocalls. What it means for marketers.
A federal appeals court delivered a ruling that directly challenges how the Federal Communications Commission interprets one of the most consequential consumer-protection laws in U.S. marketing history. The United States Court of Appeals for the Fifth Circuit, in a decision filed February 25, 2026, affirmed a lower court's summary judgment in favor of Sovereign Pest Control of TX, Inc. in a Telephone Consumer Protection Act dispute - and in doing so, the three-judge panel offered a statutory reading that conflicts with longstanding FCC regulations governing pre-recorded calls to mobile phones.
The case, Radley Bradford v. Sovereign Pest Control of TX, Inc., Case No. 24-20379, originated in the Southern District of Texas, USDC No. 4:23-CV-675. It turns on a deceptively simple question: what kind of consent does a business need before placing a pre-recorded call to a customer's cell phone?
Bradford entered into a service-plan agreement with Sovereign Pest, a Texas pest-control company, for treatment at his home. When signing the contract, he provided his cell phone number. He later explained, according to court documents, that he had given his phone number in case Sovereign Pest "needed to get in contact" with him.
During the life of the service-plan agreement, Sovereign Pest - through a subcontractor, Southern Pest Control, hired specifically to place calls on its behalf - made multiple pre-recorded calls to Bradford's mobile phone. Among those calls were messages seeking to schedule a "renewal inspection." Bradford did not simply ignore them. He scheduled inspections after receiving those calls, and he renewed his service plan four times.
Bradford nonetheless filed a putative class-action lawsuit, alleging that Sovereign Pest had sent him "unsolicited prerecorded calls... for years" in violation of 47 U.S.C. § 227(b)(3). His core argument was that the renewal-inspection calls constituted telemarketing and therefore required "prior express written consent" - not merely oral consent - under FCC regulations. The district court disagreed on both counts, granting summary judgment for Sovereign Pest. Bradford appealed.
The appeals court, in an opinion authored by Chief Judge Jennifer Walker Elrod and joined by Circuit Judges Clement and Haynes, affirmed the district court - but took a route that is arguably more significant than simply agreeing on the facts.
The panel held that the Telephone Consumer Protection Act of 1991 requires only "prior express consent" for any pre-recorded or auto-dialed call to a wireless number, and that this consent can be oral or written. According to the ruling, when Congress enacted the TCPA, "express consent" was defined in Black's Law Dictionary (6th ed. 1990) as 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." The Latin term viva voce means "with the living voice; by word of mouth."
This matters because it directly contradicts FCC regulations. The Commission's rule at 47 C.F.R. § 64.1200(a)(2) requires prior express written consent specifically for calls that "include or introduce an advertisement or constitute telemarketing." The court acknowledged this regulatory distinction between "telemarketing calls" and "informational calls" - the latter requiring only a more flexible form of consent - but concluded that the statutory text of the TCPA itself supports no such bifurcation on consent type.
According to the opinion: "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). Whether Sovereign Pest's pre-recorded calls to Bradford qualify as telemarketing or informational calls, those calls required only prior express consent from Bradford."
In other words, even accepting Bradford's framing that the renewal-inspection calls were telemarketing, the statute's plain text - not the FCC's gloss on it - controls. And the statute permits oral consent.
The panel then turned to whether Bradford had, in fact, provided prior express consent. The answer, according to the court, was plainly yes. Bradford gave Sovereign Pest his cell phone number when entering the service-plan agreement. He later confirmed to the company that it could call him on that number. He never objected to the calls and never asked Sovereign Pest to stop calling.
The court also noted the structure of the service-plan agreement itself. According to the document, the agreement allowed both parties to "extend the agreement annually" for another year if both consented. The renewal-inspection calls led directly to inspections, which in turn facilitated Sovereign Pest's decision to extend the agreement. Bradford chose to renew four times.
Bradford attempted to argue, in reply briefing, that providing his phone number without more constituted only implicit - not express - consent, and that the FCC had incorrectly interpreted the TCPA when it concluded otherwise in a 1992 ruling. The Fifth Circuit declined to address that argument on the merits, finding it was raised for the first time in a reply brief and therefore forfeited. But the panel added that the implicit-consent argument "fails in any event because, as we have discussed, he gave prior express consent."
To understand the full stakes of the ruling, it helps to trace the regulatory history. The TCPA was enacted by Congress in 1991 to address what the Fifth Circuit itself described in a 2021 decision (Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686) as robocalls and robotexts being "nuisances." The statute makes it unlawful to place calls using an automatic telephone dialing system or an artificial or prerecorded voice to cellular numbers without "the prior express consent of the called party." Congress delegated to the FCC the authority to prescribe implementing regulations.
The FCC exercised that authority in a February 15, 2012 rulemaking, In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830. That order drew a distinction between telemarketing calls - those that include or introduce an advertisement - and what the Commission dubbed "informational calls." For telemarketing calls to wireless numbers, the FCC required prior express written consent. For informational calls, the Commission said it would "maintain flexibility in the form of consent needed."
The Fifth Circuit's opinion acknowledges this distinction but holds it is irrelevant to the statutory analysis. The court, citing the Supreme Court's 2025 decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), noted that in enforcement proceedings, courts must interpret the statute "according to ordinary principles of statutory interpretation, without deference to an agency's reading." The era of Chevron deference - under which courts would defer to reasonable agency interpretations of ambiguous statutes - is over, and this ruling demonstrates concretely what that shift means in practice.
The plain meaning of "prior express consent" encompasses oral consent. The FCC's regulation requiring written consent for telemarketing calls adds a requirement the statute does not contain.
The Fifth Circuit's explicit citation of Loper Bright is not incidental. That 2024 Supreme Court decision overturned the Chevron doctrine, which for four decades had directed courts to defer to federal agencies' reasonable interpretations of ambiguous statutory language. Post-Loper Bright, courts interpret statutes for themselves.
The TCPA's consent requirement - "prior express consent of the called party" - is the kind of phrase that, under Chevron, might have been viewed as ambiguous enough to sustain the FCC's written-consent rule as a reasonable construction. Without that deference, the Fifth Circuit reads the statute according to its 1991 meaning and finds no support for a written-consent requirement.
The McLaughlin Chiropractic case, decided in 2025, reinforced this point specifically in the TCPA context, holding that courts in enforcement proceedings must interpret the statute without agency deference. The Fifth Circuit's ruling in Bradford v. Sovereign Pest applies that instruction at the circuit level.
For businesses, this creates a meaningful divergence. The FCC's written-consent regulation at § 64.1200(a)(2) technically remains on the books. But if a court follows Bradford and McLaughlin Chiropractic, it may decline to enforce the written-consent requirement and instead find that oral consent suffices under the statute.
The TCPA is among the most litigated consumer-protection statutes in the United States. Class actions brought under its provisions have resulted in settlements running into the hundreds of millions of dollars. The written-consent requirement for telemarketing calls - embedded in the FCC's 2012 regulations - has been a cornerstone of compliance programs at companies that engage in outbound phone marketing, automated appointment reminders, service renewal calls, and similar communications.
The distinction between "telemarketing" and "informational" calls has itself generated years of litigation, because the line is not always clear. A call reminding a customer that a service renewal is due can look like a retention effort - and thus telemarketing - or like a logistical update, depending on the framing. The Bradford ruling does not resolve that definitional question, because the court held that the telemarketing/informational distinction is irrelevant to the consent analysis under the statute.
What the ruling does suggest is that in the Fifth Circuit - which covers Texas, Louisiana, and Mississippi - a company that obtained a customer's phone number in the ordinary course of an established business relationship, and whose customer never objected to or asked to stop receiving calls, may be able to argue that prior express consent exists even without a written opt-in record.
This connects to broader patterns in U.S. regulatory enforcement that PPC Land has tracked extensively, including the FTC's escalating enforcement actions around consumer consent, the FCC's ongoing battles over robocall regulations, and the wave of state privacy laws creating overlapping consent requirements. The FTC's "Click to Cancel" rule, finalized in October 2024, similarly addresses how companies must handle ongoing customer relationships and subscription renewals - terrain that overlaps with the factual situation in Bradford. And California's updated privacy law, which took effect January 1, 2026, tightens consent requirements for data transfers to third parties, reflecting a broader legislative momentum toward explicit, documented consent.
The tension is real. Federal courts are now reading the TCPA to permit oral consent while state legislatures and regulators are moving in the opposite direction, demanding more formal, documented, opt-in records for virtually every form of consumer contact.
The Fifth Circuit's opinion is narrow in important respects. It does not strike down the FCC's written-consent regulation or declare it unlawful. It holds that the statute itself does not require written consent, and it affirms the district court on the separate ground that Bradford provided prior express consent in any form. The court did not need to resolve whether the renewal-inspection calls were telemarketing, because the outcome was the same either way.
The ruling also does not address the FCC's separate power to prescribe regulations implementing the TCPA. Congress explicitly charged the FCC with that task under 47 U.S.C. § 227(b)(2). A future case could address whether the FCC had authority to add a written-consent requirement beyond what the statute mandates - a question that implicates the major questions doctrine and the post-Loper Bright landscape for agency rulemaking authority more broadly.
For now, the practical effect is one of interpretive uncertainty. Companies operating in the Fifth Circuit have a circuit-level ruling suggesting that oral consent suffices under the TCPA. Companies operating nationally still face the FCC's written-consent regulation - and potentially plaintiff classes in circuits that have not addressed the question the same way.
Bradford filed this case as a putative class action. The district court's grant of summary judgment terminated the case before any class was certified, and the Fifth Circuit's affirmance leaves that outcome in place. But the class-action vehicle matters contextually. TCPA litigation is driven heavily by class actions because the statute provides for damages of $500 per violation, trebled to $1,500 for willful violations, with no cap on aggregate liability. A single mass robocall campaign can translate into billions of dollars in potential exposure at those rates.
The written-consent requirement was a bright-line rule that plaintiffs' lawyers could point to in building class cases: company X made pre-recorded telemarketing calls; it did not obtain written consent; every recipient is a class member with a viable TCPA claim. The Fifth Circuit's suggestion that oral consent can satisfy the statute complicates that framework, because the consent inquiry becomes more fact-specific - what did the customer say, when, and in what context? That kind of individualized inquiry can sometimes defeat class certification.
Who: Radley Bradford, plaintiff and appellant, versus Sovereign Pest Control of TX, Inc., defendant and appellee. The Fifth Circuit panel consisted of Chief Judge Jennifer Walker Elrod (who authored the opinion), Circuit Judge Clement, and Circuit Judge Haynes.
What: The Fifth Circuit Court of Appeals affirmed a district court summary judgment in favor of Sovereign Pest, holding that the Telephone Consumer Protection Act of 1991 requires only "prior express consent" - which may be oral or written - for pre-recorded calls to wireless numbers. The ruling contrasts with FCC regulations at 47 C.F.R. § 64.1200(a)(2), which require prior express written consent specifically for pre-recorded telemarketing calls.
When: The opinion was filed February 25, 2026. The underlying lawsuit was filed in 2023 in the Southern District of Texas.
Where: United States Court of Appeals for the Fifth Circuit, covering Texas, Louisiana, and Mississippi. The case originated in the Southern District of Texas, USDC No. 4:23-CV-675.
Why: Bradford alleged Sovereign Pest violated the TCPA by placing pre-recorded renewal-inspection calls without obtaining written consent, which he argued was required because the calls constituted telemarketing. The Fifth Circuit disagreed, finding the statute's plain meaning permits oral consent for any pre-recorded call, and that Bradford had in any event given prior express consent by providing his phone number when entering the service agreement and never objecting to the calls.
