On February 25, 2026, the US Court of Appeals for the Fifth Circuit issued a significant decision in Bradford v. Sovereign Pest Control of TX, Inc., holding that the Telephone Consumer Protection Act (TCPA) does not require prior express written consent for prerecorded or autodialed telemarketing calls to wireless numbers. In issuing this order, the Fifth Circuit broke sharply with the Federal Communications Commission’s (FCC) interpretation of the TCPA as well as long-standing TCPA precedent across other circuits. The ruling marks the latest (and almost certainly not the last) reinterpretation of what had long been viewed as settled TCPA requirements.
Background
The statutory text of the TCPA requires “prior express consent” from the called party before a caller may place autodialed or prerecorded calls to wireless numbers. In 2012, the FCC promulgated a rule requiring callers to obtain prior express written consent for autodialed or prerecorded telemarketing calls, while permitting simple prior consent (which can be obtained orally) for informational calls. For more than a decade, courts across the country relied on the FCC’s interpretation and required written consent for autodialed and prerecorded voice telemarketing calls.
Then, in 2024, the US Supreme Court held in Loper Bright Enterprises v. Raimondo that courts can interpret statutes based on the statutes’ text and ordinary canons of construction, “without deference to agency interpretations.” The decision called into question decades of precedent from federal courts that had relied on the FCC’s rulings in applying the TCPA, including on the baseline question of whether texts are even covered by the TCPA.
Bradford v. Sovereign Pest Control
The Bradford decision concerned putative class action claims brought by Radley Bradford, a well-known regular TCPA plaintiff. Bradford entered into a service plan agreement with Sovereign Pest Control and orally provided his cell phone number as part of that agreement. During the service period, Sovereign Pest placed multiple prerecorded calls to schedule “renewal inspections.” Bradford responded to these calls, scheduled inspections, and renewed his service plan four times.
Nevertheless, Bradford filed a putative class action against Sovereign Pest, alleging that the calls to his cell phone violated the TCPA because Sovereign Pest did not obtain his “prior express written consent.”
In August 2024, the district court granted summary judgment for Sovereign Pest, finding that Bradford had provided prior express consent and that the calls were not telemarketing. Bradford appealed.
The Fifth Circuit’s Decision
The Fifth Circuit affirmed summary judgment for Sovereign Pest and rejected the FCC-created distinction between telemarketing and informational calls for purposes of consent.
Looking to the ordinary meaning of “express consent” at the time the TCPA was enacted and emphasizing that statutes must be interpreted using traditional tools of statutory construction without deferring to agency interpretations, the court concluded that express consent encompasses both oral and written consent. The court found no basis in the TCPA’s statutory text for imposing a stricter consent requirement for prerecorded telemarketing calls.
The court applied that framework to hold that Bradford expressly consented to the calls by providing his cell phone number, authorizing the company to contact him, confirming again that Sovereign Pest could call him on his cell phone during later conversations, and repeatedly renewing his service agreement. The court also noted that Bradford never objected to the calls or asked the company to stop calling him.1
Impact on Companies Utilizing Telemarketing
The ruling provides a significant new defense for companies facing TCPA actions in courts within the Fifth Circuit. Under the Fifth Circuit’s ruling, any form of prior express consent, whether oral or written, may now be sufficient for autodialed or prerecorded telemarketing calls.
Furthermore, oral consent from putative class members in a TCPA litigation may also complicate class certification, because, as the court emphasized, consent can be established where a consumer provides a phone number during a transaction, expressly states the number may be used as a contact method, or engages in conduct confirming consent (as Bradford did). Establishing lack of consent on a classwide basis could therefore become a fact-intensive inquiry.
Importantly, though, the burden will remain on the telemarketer to prove clear, direct, and unequivocal consent. Therefore, companies relying on oral consent will need to show that the consent is documented, consistent, and verifiable.
Takeaways
The Fifth Circuit’s departure from the FCC’s written consent requirement for telemarketing calls creates a circuit split and introduces a new variable into TCPA compliance frameworks.
For companies making calls to consumers in multiple jurisdictions, the safest and most pragmatic approach remains to obtain and maintain written consent for telemarketing calls. Furthermore, state telemarketing statutes may independently require written consent, regardless of the TCPA’s federal standard.
Finally, the Bradford decision illustrates the continuing effect of Loper Bright, in the aftermath of which district and circuit courts may feel increasingly empowered to disregard long standing FCC interpretations where those interpretations diverge from statutory text.
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1 The Fifth Circuit did not reach whether the calls qualify as informational calls, as the district court had found in its summary judgment holding, as opposed to telemarketing calls.
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