Fifth Circuit Exterminates Written Consent for Prerecorded Calls

If you run a service business, collecting customer phone numbers is routine. Reminders and renewals depend on it. That routine practice now intersects with a significant federal appellate ruling.

In Bradford v. Sovereign Pest Control of TX, Inc., 2026 U.S. App. LEXIS 5614 (5th Cir. Feb. 25, 2026), the Fifth Circuit held that the TCPA requires only “prior express consent” for prerecorded calls to cell phones, and that consent may be oral or written.

The court rejected the Federal Communication Commission’s (FCC’s) regulatory requirement—not language found in the TCPA statute itself—that prerecorded telemarketing calls to cell phones can only be made with prior express written consent.

This departs from more than a decade of FCC-imposed regulatory guidance and case law. However, unless other circuits follow suit, the impact remains geographically limited.

The plaintiff had provided his cell number in a pest-control service agreement so the company could contact him. He later received prerecorded renewal calls, scheduled inspections, renewed his plan, and then sued, arguing he had not given written consent.

Focusing on 47 U.S.C. § 227(b)(1), the court emphasized that the statute requires only “prior express consent” and does not specify that it must be written. Applying ordinary meaning, the court concluded that oral consent qualifies and that the statute does not justify imposing a written-consent requirement for telemarketing calls.

The ruling binds only federal courts in Texas, Louisiana, and Mississippi. Outside the Fifth Circuit, courts are likely to continue applying the FCC’s written-consent framework unless appellate courts rule otherwise.

Even within the Fifth Circuit, TCPA compliance obligations remain. It does not eliminate National Do Not Call Registry restrictions or other telemarketing requirements. State telemarketing statutes also remain a significant risk, and some expressly require written consent for prerecorded telemarketing calls.

The practical constraint is proof. In TCPA litigation, the caller bears the burden of establishing consent. While oral consent may now suffice in the Fifth Circuit, proving it without a recording or reliable documentation can be difficult. Written consent creates a clear evidentiary record.

For companies operating exclusively in the Fifth Circuit, the decision may offer a meaningful defense where written consent is absent but demonstrable oral consent exists. For national businesses, maintaining a uniform written-consent standard remains the safer course.

Bradford is significant but contained. It narrows one federal consent requirement in one circuit. It does not eliminate do-not-call exposure, override state statutes, or remove the need to document consent carefully.