The U.S. Court of Appeals for the Fifth Circuit recently issued a significant Telephone Consumer Protection Act (TCPA) decision in Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379, Doc. 85-1 (5th Cir. Feb. 25, 2026). The court affirmed summary judgment for the company and held that the TCPA’s “prior express consent” standard does not require “prior express written consent” for prerecorded or autodialed calls to wireless numbers, even if the calls are alleged to be telemarketing.
The defendant, Sovereign Pest, provides pest-control service plans. The plaintiff provided his cell-phone number on the service-plan agreement and later stated that he did so in case the company needed to contact him. During the course of the agreement, Sovereign Pest placed prerecorded calls seeking to schedule renewal inspections. The plaintiff scheduled inspections after receiving the calls and renewed his service plan four times. He later filed a putative class action alleging the calls were unsolicited prerecorded calls made without his prior express written consent.
On appeal, the Fifth Circuit concluded that the statutory text of the TCPA requires only “prior express consent” and does not distinguish between telemarketing and informational calls for purposes of the consent standard. In reaching its conclusion, the court declined to follow the Federal Communication Commission’s (FCC) regulation that imposes a written consent requirement for prerecorded telemarketing calls. Citing Supreme Court authority that courts must interpret Congress’s enacted text using ordinary tools of statutory interpretation without deferring to an agency’s reading, the court interpreted TCPA without deference to the FCC’s added “written” requirement. Applying that standard to the record, the court held the plaintiff provided prior express consent based on his provision of his number, his statements, and later confirmations that the company could call him, his lack of objection, and his repeated renewals of the service.
Bradford could reshape TCPA litigation strategy (at least in the Fifth Circuit) in several ways. It may be harder for plaintiffs to establish liability where “no written consent” is pleaded as the core theory. Courts may also be more willing to consider defendants’ claim that consent was given based on relationship-based and operational evidence, including intake flows, account notes, call logs, recordings, and vendor records. At least in the Fifth Circuit, TCPA cases may turn less on what’s “in writing” and more on what’s in the record.
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