Overview
"Moving Forward to the Past"—not quite as catchy as "Back to the Future." But we try. Yesterday afternoon, in Bradford v. Sovereign Pest Control of Texas, Inc., 2026 WL 520620 (5th Cir. Feb. 25, 2026), the US Court of Appeals for the Fifth Circuit effectively returned the Telephone Consumer Protection Act (TCPA) consent landscape to its pre-October 2013 state and upended nearly thirteen years of largely settled law. In short, the court held that a consumer's "prior express consent" not "prior express written consent" is all that is required for a business to place any prerecorded message call—telemarketing or otherwise—to a cell phone.
To set the stage: the TCPA generally prohibits the making of any type of call to a cell phone, other than one made for emergency purposes "or made with the prior express consent of the called party," using, among other things, an "artificial or prerecorded voice" (i.e., a prerecorded message). In February 2012, the Federal Communications Commission (FCC) amended its TCPA rules set forth in 47 C.F.R. § 64.1200(a)(2) to require, as of October 16, 2013, that "prior express written consent" be obtained before placing prerecorded message telemarketing calls to cell phones. Prior express written consent is a heightened form of consent requiring a signed agreement from the consumer that contains a number of disclosures. Prior express consent, however, is a less stringent type of consent and typically is deemed to exist whenever a consumer has voluntarily provided their telephone number to a business without limiting instructions, orally or otherwise. Prior express consent is all that is necessary for non-telemarketing prerecorded message calls, such as purely informational or transactional calls, to be placed to a cell phone. Thus, since October 2013, any prerecorded message telemarketing call placed to a cell phone has required the recipient's prior express written consent.
Not anymore. (Or, perhaps, as the Fifth Circuit suggests, not ever.) In Bradford, the parties agreed that the plaintiff gave his cell phone number to the pest control company-defendant to receive informational or transactional calls about his service. The district court determined that the defendant's renewal inspection scheduling prerecorded message calls were not telemarketing and, thus, all that was necessary in order for the defendant to place such calls was the plaintiff's prior express consent. And, the plaintiff provided that level of consent by providing his cell phone number on his initial service-plan contract. Applying this reasoning, the district court granted summary judgment to the defendant.
On appeal, the plaintiff argued that the calls at issue were telemarketing in nature and, therefore, could be placed to him only if he provided the defendant with his prior express written consent. In a blow to the administrative state (one of the authors of this advisory phrased the outcome slightly differently, though not suitable for public consumption), the Fifth Circuit held that prior express written consent is not required for any type of prerecorded message call:
[C]ontrary to the FCC's regulation [47 C.F.R. § 64.1200(a)(2)], 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 statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent. Whether [the defendant's] pre-recorded calls to [the plaintiff] qualify as telemarketing or informational calls, those calls required only prior express consent from [the plaintiff].
(Internal citations omitted.) In short, according to the Fifth Circuit, "the statute does not require prior express written consent."
The Bradford decision echoes the Eleventh Circuit's ruling early last year in Insurance Marketing Coalition Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025) ("IMC"), which we covered at the time. In IMC, the court held that the FCC exceeded its authority in pushing forward with the agency's so-called One-to-One Consent Rule, which would have required that consumers provide prior express written consent to one seller at a time to receive certain types of "logically and topically associated" telemarketing calls and text messages. The Eleventh Circuit, like the Bradford court, found that the TCPA on its face did not permit such restriction.
Now, at least in the Fifth Circuit, so long as a business has a consumer's prior express consent, written or not, it may place any type of prerecorded message call to the consumer. Whether courts outside the Fifth Circuit will align with Bradford remains to be seen. Stay tuned; we'll keep you updated as the caselaw develops.
