On February 25, 2026, the U.S. Court of Appeals for the Fifth Circuit, in Bradford v. Sovereign Pest Control of TX, Inc., upheld a district court summary judgment decision that effectively nullified the FCC’s “prior express written consent” requirement for autodialed or prerecorded marketing calls to mobile numbers. The Fifth Circuit found that this consent requirement exceeds the plain language of the Telephone Consumer Protection Act (TCPA).
The text of the TCPA, codified at 47 U.S.C. § 227, requires “prior express consent” for calls (including SMS) to mobile numbers using an automatic telephone dialing system or an artificial or prerecorded voice. In 2012, the FCC amended its rules to impose a higher standard of consent for such calls – “prior express written consent” – when they contain telemarketing or advertisement (i.e., marketing) content. As a result, since that time the FCC’s rules have required “prior express consent” for informational transmissions but “prior express written consent” for marketing transmissions – and its rules specify that the latter must take the form of a signed, written agreement (or its electronic equivalent) and contain certain specified disclosures.
In its opinion, the Fifth Circuit explained that, in the wake of the U.S. Supreme Court’s recent decisions in McLaughlin and Loper Bright, courts can interpret the meaning of a statute according to ordinary principles of statutory construction, without deference to an agency’s interpretation. Using that framework, the Fifth Circuit determined that the plain meaning of “prior express consent” encompasses both oral and written consent, provided it is directly given. Thus, contrary to the FCC’s requirement, the court found that “[t]he statute provides no basis for concluding that telemarketing calls require prior express written consent.”
The immediate effect of the Fifth Circuit’s decision is that when TCPA cases are heard in Louisiana, Mississippi, and Texas, defendants may, depending on the facts, be able to rely on this decision to avoid liability, provided they have transmitted the relevant calls pursuant to “prior express consent.” But the FCC’s “prior express written consent” requirement for marketing transmissions remains in effect outside the Fifth Circuit. If a circuit split were to emerge, it is possible that the Supreme Court would take up this issue, but it is too soon to predict with any certainty whether that will occur.