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A recent decision from the Fifth Circuit Court of Appeals has sparked a lot of conversation across the TCPA and telemarketing compliance world.
In Bradford v. Sovereign Pest Control Inc. of Texas, the court concluded that the Telephone Consumer Protection Act (TCPA) itself does not require prior express written consent for prerecorded telemarketing calls.
Instead, the statute requires only “prior express consent.”
For many compliance teams, that raises an obvious question:
Does this mean written consent is no longer required for telemarketing calls?
The short answer: not really.
To understand why, it helps to look first at what actually happened in the case.
What Happened in Bradford v. Sovereign Pest Control
The case began with a fairly common business scenario. A customer signed a pest control service agreement and provided his cell phone number so the company could contact him about service matters.
Sovereign Pest Control later used prerecorded calls to remind the customer about upcoming renewal inspections. The customer answered those calls and renewed his service multiple times.
Later, however, the customer filed a TCPA lawsuit. His argument was that the prerecorded calls violated the TCPA because they were telemarketing calls made without prior express written consent.
A federal district court ruled in favor of the company, finding that the customer had provided consent.
When the case reached the Fifth Circuit Court of Appeals, the court went further. Instead of focusing only on the facts of the case, the court addressed the broader legal question: Does the TCPA actually require written consent for telemarketing robocalls?
Their answer was no.
Why the Fifth Circuit Says Written Consent Is Not Required Under the TCPA
The Fifth Circuit focused on the actual language of the TCPA statute. The law prohibits certain calls made using an automatic telephone dialing system (ATDS) or prerecorded voice unless the caller has “the prior express consent of the called party.”
For years, however, the FCC interpreted that requirement differently for telemarketing calls. In 2013, the FCC adopted regulations stating that telemarketing robocalls required prior express written consent.
The Fifth Circuit concluded that the FCC’s rule went further than the statute itself.
Looking at the plain meaning of the phrase “express consent,” the court noted that historically the term has included both oral and written consent. Because Congress did not specifically require written consent in the statute, the court declined to impose that requirement.
The result is that, within the Fifth Circuit, either oral or written consent may satisfy the TCPA’s consent requirement.
Importantly, the decision applies only within the Fifth Circuit, which covers Texas, Louisiana, and Mississippi.
Why the TCPA Consent Decision Matters Beyond This Case
While the immediate impact of the ruling may be geographically limited, the reasoning behind the decision reflects a broader shift happening in administrative law.
In recent years, courts have shown increasing skepticism toward regulatory interpretations that extend beyond statutory text. Decisions like Loper Bright v. Raimondo have signaled that courts may be less willing to defer automatically to agency rulemaking.
The Bradford decision fits within that trend.
It suggests that courts may increasingly examine whether regulatory interpretations, such as those issued by the FCC, actually align with the statutes they are meant to interpret.
That is a meaningful development for regulated industries. But it does not necessarily mean the practical compliance environment has suddenly become easier.
Why Most TCPA Compliance Programs Should Not Change
Even though the Fifth Circuit concluded that written consent is not required under the TCPA statute itself, several practical realities remain.
First, the Federal Trade Commission’s Telemarketing Sales Rule (TSR) still generally requires written consent for prerecorded telemarketing calls.
Second, state telemarketing laws often impose their own consent standards, many of which still require written consent regardless of federal interpretation.
Third, the Fifth Circuit decision applies only in three states. Courts in other circuits may reach different conclusions, which could create a patchwork of consent standards across the country.
And finally, from a practical standpoint, oral consent is much harder to prove in the event of litigation or regulatory review.
Written consent remains the clearest and most defensible evidence that consent was properly obtained.
For most organizations, the safest operational approach has not changed.
The Difference Between Legal Standards and Operational Risk
This case highlights an important distinction that often gets lost in compliance discussions.
There is a difference between the legal minimum required by a court decision and the operational standard required to manage risk effectively.
Compliance programs should not be designed around the most favorable interpretation of a single court opinion.
They should be designed around the ability to demonstrate compliance clearly if challenged.
Even if oral consent could theoretically satisfy the TCPA under certain circumstances, organizations would still need to prove:
- when consent was given
- what the consumer agreed to
- whether the consent applied to telemarketing
- whether the consumer later revoked consent
Written consent answers those questions far more cleanly.
That’s why, from a compliance operations standpoint, it continues to be the most reliable standard.
What Businesses Should Do After the Fifth Circuit TCPA Decision
For most organizations making outbound calls or sending marketing messages, the best response to the Bradford decision is not to relax compliance standards.
Instead, organizations should continue to focus on the fundamentals:
- capturing clear written consent whenever possible
- maintaining strong Do Not Call scrubbing processes
- properly honoring revocation of consent requests
- maintaining reliable records and audit trails
The decision is certainly worth monitoring as other courts address similar issues.
But it should not be interpreted as a signal that compliance controls can be weakened.
The Bigger Signal for TCPA Compliance
If the Bradford decision proves significant over time, it may be less about written consent and more about how courts treat regulatory interpretations moving forward.
As judicial scrutiny of agency rulemaking increases, organizations may find themselves navigating a compliance environment that is more fragmented and more dynamic.
For companies making high-volume outbound contact, that reality reinforces the importance of building compliance infrastructure that can adapt as legal interpretations evolve.
Because while court decisions may shift the legal floor, the operational responsibility to demonstrate compliant conduct remains the same.
If your team isn’t completely sure what this means for your own outreach practices, don’t hesitate to schedule a quick call with one of our compliance experts.
