Fifth Circuit Panel Allows Prior Express Oral Consent For Telemarketing Calls Under the Telephone Consumer Protection Act

On February 25, 2026, a three-judge panel of the US Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) ruled in Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379, 2026 WL 520620 (5th Cir., Feb. 25, 2026), that “prior express consent” for autodialed or pre-recorded telemarketing calls does not need to be written, and oral consent is a valid form of consent for such calls under the Telephone Consumer Protection Act (“TCPA”). Guided by recent Supreme Court decisions on agency rulemaking, the Fifth Circuit made this finding despite Federal Communications Commission (“FCC”) implementing regulations that require “prior express written consent” for telemarketing or advertising calls.

Background: The TCPA, FCC Regulations, and Bradford’s Lawsuit

The TCPA generally restricts the use of calls and texts made using an automatic telephone dialing system (an “autodialer”) to consumers. Under the statutory text of the TCPA, calls and texts made using an autodialer require consumers’ “prior express consent.” For telemarking and advertising calls, the FCC’s implementing regulations at 47 C.F.R. § 64.1200(a)(1) require “prior express written consent,” going beyond the language of the TCPA; under the regulations, informational messages are not subject to the “written” requirement.

Radley Bradford, an individual plaintiff, brought a putative class-action complaint against Sovereign Pest Control of TX, Inc. (“Sovereign”), arguing that pre-recorded renewal inspection calls he received from Sovereign between 2019 and 2023 were telemarketing calls made without Bradford’s express written consent and thus violated the TCPA. Bradford originally provided Sovereign his phone number pursuant to a two-year service-plan agreement and renewed the plan four times after receiving pre-recorded renewal calls from Sovereign. Judge Andrew S. Hanen of the US District Court for the Southern District of Texas granted Sovereign’s motion for summary judgment, which Bradford appealed to the Fifth Circuit.

Fifth Circuit Panel Ruling and Implications

The Fifth Circuit panel affirmed the district court’s finding of summary judgment in favor of Sovereign. The panel ruled that, based on the text of the TCPA, telemarketing or advertising calls or texts made using an autodialer do not require “prior express written consent,” and prior express oral consent suffices. This is regardless of distinction in the FCC’s regulations requiring written consent for telemarketing or advertising calls but not for informational calls. The panel also conducted a fact-specific analysis to affirm its finding of prior express consent by Bradford. Specifically:

• Based on the recent Supreme Court cases McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025) and Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), the panel relied on statutory interpretation of the TCPA’s text, without deference to agency interpretation. In doing so, the panel stated that “contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has ‘the prior express consent of the called party.’”
• The panel found that Bradford provided prior express consent when he provided his cellphone number to Sovereign as part of the original service-plan agreement, did not limit the calls when providing his cellphone number, and “never objected to Sovereign Pest’s calls or asked the company not to call him.”
• The panel highlighted how the continuing relationship between Bradford and Sovereign contributed to an understanding of prior express consent; that the service-plan agreement allowed for annual renewal if both parties consented; that Sovereign’s renewal calls resulted in inspections that “facilitated Sovereign Pest’s decision to renew the agreement;” and that Bradford renewed the service-plan agreement four times after the initial two-year term.
• In reply and supplemental briefing, Bradford argued that providing his number to Sovereign only constituted implicit and not express consent. The panel dismissed this argument on procedural grounds for being raised for the first time on reply, and also reiterated its finding that Bradford provided prior express consent.

While currently limited to the Fifth Circuit, this ruling provides additional insight into how courts may interpret “prior express consent” under the TCPA after McLaughlin and Loper Bright. Both of these decisions give judges greater flexibility in interpreting the TCPA themselves rather than being bound by the FCC’s interpretation, which may weaken the efficacy of the FCC’s TCPA rules. Interested parties should continue to closely monitor developments in this area, including whether and how the FCC might adjust its regulatory interpretation of the TCPA or how other courts outside of the Fifth Circuit might refer to this ruling.