Fifth Circuit Validates Oral Consent Under TCPA for Telemarketing and Solicitation, 3-16-2026

The United States Court of Appeals for the Fifth Circuit has held that the Telephone Consumer Protection Act (TCPA) permits oral consent for prerecorded or automated telemarketing calls to wireless numbers, concluding that the statute requires only “prior express consent.”
 
The court declined to apply the Federal Communications Commission’s (FCC) 2013 rule requiring “prior express written consent,” determining that the TCPA’s text does not impose a written consent requirement and that the statute itself requires only “prior express consent.”
 
In Bradford v. Sovereign Pest Control of Texas Inc., the Fifth Circuit’s decision reflects an emerging trend of courts re-examining agency interpretations under the post-Loper Bright administrative law framework and reaffirming that the TCPA’s consent provision must be interpreted according to its plain text.
 
Post-Loper Bright Framework

The decision reflects the evolving administrative law landscape following the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo, which eliminated Chevron deference and directed courts to independently construe statutory text. Applying traditional tools of statutory interpretation, the Fifth Circuit determined that the TCPA requires only “prior express consent” and does not specify that consent must be written or distinguish between telemarketing and informational calls.
 
While the FCC’s 2013 order imposed a written consent requirement for telemarketing calls made using prerecorded or autodialed technology, the Fifth Circuit concluded that the statute contains no such limitation. Because the TCPA’s language is clear, the panel declined to defer to the FCC’s interpretation and instead applied the statute’s plain text in evaluating whether valid consent existed.
 
Case Background

In Bradford v. Sovereign Pest Control of Texas Inc., the plaintiff alleged that prerecorded telemarketing calls violated the TCPA after he signed up for pest control services and provided his cell phone number.
 
The district court granted summary judgment to the defendant, concluding that the plaintiff had given prior express consent by furnishing his number and confirming his willingness to receive follow-up communications. The Fifth Circuit affirmed, agreeing that the plaintiff’s conduct—providing and confirming his number, renewing services, and never objecting to calls—constituted valid consent under the TCPA.
 
Court’s Statutory Analysis

The Fifth Circuit grounded its textual analysis in Black’s Law Dictionary (6th ed. 1990), which defines “express consent” as consent given “directly … either viva voce or in writing.” Interpreting that ordinary meaning, the panel concluded that “express” consent may be conveyed orally or in writing and that nothing in the statute authorizes the FCC to narrow that scope.
 
Because Congress required only “prior express consent,” the court concluded that the TCPA’s text does not support imposing an additional written consent requirement. The panel therefore declined to apply the FCC’s written-consent rule in the circumstances presented.
 
Practical Implications and Risk Considerations

The decision is binding within the Fifth Circuit—covering Texas, Louisiana, and Mississippi—but it may influence how other courts analyze agency interpretations of the TCPA in the wake of Loper Bright. Businesses placing prerecorded or automated calls to wireless numbers in those jurisdictions may rely on oral consent, or consent arising from a customer’s voluntary provision of a phone number in a transactional context, for calls subject to § 227(b)(1)(A).
 
However, compliance risks remain nationwide. The FCC’s 2013 written consent rule remains in place pending further judicial or agency action, and other circuits have not yet determined whether the rule survives post-Loper Bright. Plaintiffs’ counsel are therefore likely to continue filing cases in jurisdictions that treat written consent as required for telemarketing calls.
 
Organizations should consider the following steps:
 
• Reassess TCPA compliance frameworks to distinguish between what is legally required in specific jurisdictions and what is maintained as a best practice.
• Enhance procedures for memorializing oral consent, such as preserving call recordings, sending follow-up confirmations, and maintaining CRM notes documenting when and how consent was given.
• Consult counsel before modifying consent practices for multistate or nationwide campaigns, given the likelihood of divergent interpretations across jurisdictions.

Authors:

Richard J. Perr
Co-Managing Partner of Philadelphia Office,
Co-Chair of Financial Services & Institutions Practice Group

Monica M. Littman
Partner

Graeme Hogan
Partner

Shera Anderson
Of Counsel

Dominic Borelli
Attorney

Kristen Ruotolo
Attorney

Samuel Sjosten
Attorney