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In our August 2025 article,&nbsp;<a href="https://www.blankrome.com/publications/supreme-shift-how-mclaughlin-reshaping-tcpa">Supreme Shift: How McLaughlin is Reshaping the TCPA</a>, we previewed the Fifth Circuit’s consideration of the appeal in&nbsp;Bradford v. Sovereign Pest Control of TX, Inc.,&nbsp;and discussed how the post-McLaughlin&nbsp;era would usher in rapid change for Telephone Consumer Protection Act (“TCPA”) litigation. On February 25, 2026, the Fifth Circuit did just that, issuing a ruling that has significant implications for businesses that communicate with customers via automated calls.

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The case began when Radley Bradford sued Sovereign Pest Control, alleging that the company’s automated calls to his cell phone to remind him to schedule inspections and encourage renewal of his pest control service plan violated the TCPA because they were made without the required consent. At the district court level, Sovereign argued that Bradford had provided his cell phone number as part of his service agreement and never objected to the calls, thus giving “prior express consent.” The District Court agreed, finding the calls were “informational” rather than telemarketing, and that Bradford’s act of providing his number was sufficient consent under then-binding Federal Communications Commission (“FCC”) interpretations. The Court granted summary judgment for Sovereign. While the case was on appeal, however, the Supreme Court decided&nbsp;McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., prompting the Fifth Circuit to order supplemental briefing on how&nbsp;McLaughlin&nbsp;and&nbsp;Loper Bright Enterprises v. Raimondo&nbsp;affect the appeal.

The Fifth Circuit affirmed the District Court’s summary judgment order in favor of Sovereign Pest Control, holding that Bradford did indeed provide prior express consent for the company’s prerecorded renewal calls.

The Court explained that, following&nbsp;McLaughlin&nbsp;and&nbsp;Loper Bright, courts are required to interpret the meaning of Congress’s enacted text according to ordinary principles of statutory interpretation, without deference to an agency’s reading. Applying this framework, the Fifth Circuit examined the plain meaning of “prior express consent” as used in the TCPA, which prohibits prerecorded calls to wireless numbers absent “the prior express consent of the called party.”

The Court determined that “prior express consent” encompasses both oral and written consent for both telemarketing and informational calls. The Court looked to the ordinary meaning of “express consent” at the time Congress enacted the TCPA, which meant consent that is “directly given, either&nbsp;viva voce&nbsp;[meaning ‘[w]ith the living voice; by word of mouth’] or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.” Thus, contrary to the FCC’s regulation requiring written consent for telemarketing calls, Congress permits either written or oral consent for any auto-dialed or prerecorded call.

Turning to the facts, the Court found that Bradford gave prior express consent when he provided his cell phone number as part of his service agreement with Sovereign Pest. Bradford himself expressly stated that he gave Sovereign Pest his phone number so that the company could get in touch with him. Critically, he did not limit the calls when he provided his cell phone number, and he never objected to Sovereign Pest’s calls or asked the company not to call him.

This is a positive, common-sense development that flows naturally from&nbsp;McLaughlin&nbsp;and&nbsp;Loper Bright, as we previewed in our August article. The Fifth Circuit’s ruling confirms that businesses can rely on oral consent, including a customer’s act of providing a phone number in connection with a business relationship, as valid prior express consent under the TCPA.

However, businesses should remain on alert. As we discussed previously, the post-McLaughlin&nbsp;era is marked by rapid change and unpredictability. While prior express consent can now be either oral or written in the Fifth Circuit, other jurisdictions may reach different conclusions. Moreover, even in places where the federal TCPA may permit oral consent, businesses must still comply with state telemarketing laws. Many states have enacted their own “mini-TCPA” statutes that may impose stricter requirements than the federal law. Thus, even though the Fifth Circuit’s&nbsp;Bradford&nbsp;ruling permits oral consent under the federal TCPA, that may not be true at the state level within the Fifth Circuit. Accordingly, what works in one place may expose a company to liability in another. Until the law develops, businesses face a patchwork of potentially conflicting rules.

The Fifth Circuit’s decision in&nbsp;Bradford&nbsp;represents another significant step in the ongoing judicial reexamination of TCPA fundamentals. Courts are returning to the statutory text to resolve key questions about consent, and this decision provides welcome clarity for businesses operating within the Fifth Circuit’s jurisdiction. However, given the potential for divergent rulings in other circuits, businesses should consult with counsel to develop Short Message Service (“SMS”) and calling programs that are compliant even in the most restrictive jurisdictions.

For more information or assistance, please contact <a href="https://www.blankrome.com/people/harrison-brown">Harrison Brown</a>, <a href="https://www.blankrome.com/people/jeffrey-n-rosenthal">Jeffrey N. Rosenthal</a>, <a href="https://www.blankrome.com/people/thomas-p-cialino">Thomas P. Cialino</a>, or another member of Blank Rome’s <a href="/services-and-industries/litigation/business-litigation/" id="18541">Business Litigation</a> group.

Fifth Circuit Confirms: Oral Consent Is Enough Under the TCPA

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Fifth Circuit Confirms: Oral Consent Is Enough Under the TCPA

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