Fifth Circuit Rejects FCC’s Position That The TCPA Requires Prior Express Written Consent to Place Prerecorded Marketing Calls to a Cell Phone
In a thoroughly predictable yet dramatically impactful development, a federal court once again has exercised its relatively newfound authority to challenge or reject the Federal Communications Commission’s (FCC) interpretation of the scope and application of the Telephone Consumer Protection Act (TCPA). This time, the United States Court of Appeals for the Fifth Circuit has held, contrary to a long-standing FCC position, that only prior express (not written) consent is required to place prerecorded marketing calls to a cell phone.
McLaughlin Strikes Again
The Fifth Circuit’s February 25, 2026, opinion in Bradford v. Sovereign Pest Control is the latest example of how the TCPA landscape has changed since the United States Supreme Court’s 2025 decision in McLaughlin Chiropractic Associates v. McKesson Corporation. As I discussed in this blog post last June, the Court in McLaughlin held that district courts were not bound by nor did they need to give deference to FCC interpretations of the TCPA. Instead, per the Court’s direction, district courts must now independently determine the law’s meaning under ordinary principles of statutory interpretation while affording “appropriate respect” (whatever that means) to the agency’s interpretation.
The issue confronting the Fifth Circuit in Bradford was the form of prior consumer consent required under the TCPA for placing unsolicited prerecorded calls. The TCPA prohibits calls to wireless numbers absent “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1), (b)(1)(A), (b)(1)(A)(iii). Notwithstanding the absence of the word “written” in the statutory language, the FCC, in 2013, adopted a rule requiring “prior express written consent” for prerecorded telemarketing calls to wireless numbers, but not for “informational calls,” for which it “maintain[s] flexibility in the form of consent needed.” 27 FCC Rcd. 1830.
In Bradford, the plaintiff had hired Sovereign Pest, a Texas pest control company, to treat his home. On his service plan agreement, Bradford provided his cell phone number. He later explained that he had given his phone number in case Sovereign “needed to get in contact” with him. Throughout the duration of the agreement, Sovereign placed multiple prerecorded calls to Bradford, including calls seeking to schedule a “renewal inspection.” After receiving those calls, Bradford did indeed schedule inspections and renewed his service plan four times.
Nevertheless, Bradford subsequently filed a putative class action against Sovereign, alleging that it violated the TCPA by failing to obtain his “prior express written consent” for the renewal-inspection calls. The district court determined that Sovereign’s calls did not constitute telemarketing and that Bradford had indeed provided prior express consent.
“Written” Was Not Written
The Fifth Circuit affirmed the district court’s finding that Bradford had given the consent required under the TCPA. The court began its analysis by noting that, under McLaughlin, it “must interpret the meaning of Congress’s enacted text according to ordinary principles of statutory interpretation, without deference to an agency’s reading.” Using that standard, the court held that “contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or prerecorded 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,” the court continued. Regardless of whether the “prerecorded calls to Bradford qualify as telemarketing or informational calls, those calls required only prior express consent from Bradford.”
Bradford gave that prior express consent, the court found, when he gave Sovereign his phone number so the company could contact him, and subsequently never objected to Sovereign’s calls or asked the company not to call him.
Importantly, the Bradford interpretation of the TCPA’s prior express consent requirement is only binding in the Fifth Circuit (Louisiana, Mississippi, and Texas). However, as consent is one of the more frequently litigated aspects of the TCPA, other circuit courts will likely be weighing in on this issue in the near future. Given the potential for circuit splits in the new post-McLaughlin world, it is distinctly possible that the final word on what consent the TCPA requires for marketing calls will come from the Supreme Court. For this and other reasons, companies should strongly consider staying the course and requiring prior express written consent for any marketing call regulated by the TCPA.
As noted in my prior post, given the as-yet unsettled TCPA landscape, now is the time to review your company’s policies and procedures regarding outbound calls with appropriate counsel to ensure they align with your company’s “risk appetite.”
If you have any questions about these decisions or the TCPA generally, please contact Robert Horwitz at Maddin Hauser.