TCPA Reset: Fifth Circuit Rejects "Prior Express Written Consent" Rule

The U.S. Court of Appeals for the Fifth Circuit issued a landmark decision in Bradford v. Sovereign Pest Control of TX, Inc. on February 25, 2026, ruling that the Telephone Consumer Protection Act (TCPA) does not require prior express written consent for automated or prerecorded telemarketing calls to cellphones.

Background

The TCPA conditions liability on a caller's failure to obtain "prior express consent" before placing autodialed or prerecorded calls to cellphones. However, in 2012, the Federal Communications Commission (FCC) issued rules (FCC 12-2) requiring prior express written consent for automated or prerecorded telemarketing calls to cellphones. Since then, this standard has been widely accepted and applied by courts.

This decision follows the U.S. Supreme Court's 2024 ruling in Loper Bright Enterprises v. Raimondo, which eliminated Chevron deference and instructed courts to interpret statutes using ordinary principles of statutory interpretation without deference to agency readings.

Factual Allegations

The plaintiff, Radley Bradford, entered into a service plan agreement with Sovereign Pest Control and provided his cellphone number. During the term of the agreement, the Texas pest control company placed multiple prerecorded calls to Bradford's cellphone to schedule "renewal inspections." Bradford responded to those calls, scheduled inspections and renewed his service plan four times.

Bradford subsequently brought suit under the TCPA, asserting that the calls were telemarketing in nature and that Sovereign Pest Control failed to obtain the required prior express written consent.

The Court's Decision

The Fifth Circuit affirmed summary judgment in favor of Sovereign Pest Control. In doing so, the court emphasized that statutes must be interpreted using traditional tools of statutory construction, without deferring to agency interpretations. Applying those principles, the court relied on Black's Law Dictionary to conclude that the term "prior express consent" encompasses both oral and written consent – undercutting the FCC's longstanding rule.

Based on this analysis, the Fifth Circuit rejected the FCC's distinction between telemarketing and informational calls with respect to the form of consent required. The court held that the TCPA's text does not differentiate consent requirements based on call type and requires only "prior express consent," whether oral or written. While the court did not eliminate the concept of "telemarketing," it concluded that the statute provides no textual basis for imposing different forms of consent based on call content.

Applying the prior express consent standard, the court further concluded that Bradford had provided the requisite consent when he supplied his cellphone number in the service plan agreement and expressly authorized Sovereign Pest Control to contact him. The court emphasized that Bradford not only provided his number but also engaged with the prerecorded calls, scheduling renewal inspections and repeatedly renewing his service plan. Together, these facts demonstrated consent sufficient to satisfy the TCPA's requirements, even in the absence of written consent.

Practical Implications and Ongoing Risk

Although this decision may appear to relax certain TCPA consent requirements, it does not eliminate TCPA exposure. Companies must still demonstrate that the called party provided clear, direct and unequivocal consent. Where consent is obtained orally, it should be carefully documented and independently verifiable to withstand future scrutiny.

Importantly, the ruling applies only within the Fifth Circuit. State telemarketing statutes may continue to require written consent, and other federal circuits either adhere to the FCC's prior express written consent framework or apply their own interpretations of "express consent."

Companies engaged in interstate telemarketing should therefore proceed with caution, as calls placed to or from jurisdictions outside the Fifth Circuit may remain subject to traditional written consent standards.

More broadly, the decision signals a growing judicial willingness to disregard long‑standing FCC interpretations of the TCPA where they are viewed as inconsistent with the statute's text. This ruling could invite additional challenges to FCC consent rules and could prompt the FCC to reconsider its regulatory approach.

Looking Forward

This ruling may give critics of the FCC's upcoming global revocation rule precisely the leverage they need to push the FCC to reconsider its approach. The "global revocation" rule – which requires callers to treat any request to revoke consent as a global, organization-wide revocation of consent – has faced significant criticism for being overly broad and burdensome.

Initial criticism prompted the FCC to extend the rule's effective date to January 31, 2027. However, this decision may provide critics with renewed momentum to seek its withdrawal altogether.

For more information or questions about how this may impact your business, please contact the authors or another member of Holland & Knight's Data Strategy, Security & Privacy Team.

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