Advertising Law Blog

A very recent decision from the Fifth Circuit Court of Appeals has threatened the established definition of prior express consent and could free businesses from some of the lawsuits filed against them under the Telephone Consumer Protection Act (TCPA). In Bradford v. Sovereign Pest Control of Texas, Inc., decided on February 25, 2026, the Fifth Circuit held that a consumer who provides a business with his or her cellphone number has consented to receive prerecorded calls and SMS text messages under the TCPA. The case affirmed a lower court’s ruling that a pest-control company did not violate the law by using prerecorded messages to contact a customer about renewal inspections.

Plaintiff Radley Bradford signed up for a service plan and listed his cellphone number on the agreement. Sovereign Pest later sent prerecorded calls reminding him to schedule renewal inspections, which Bradford did—four separate times. Despite renewing the plan year after year, Bradford later filed a class action claiming that the company needed his prior express written consent, as that term is defined by the Federal Communications Commission (FCC), for these calls.

The Fifth Circuit disagreed, explaining that the TCPA requires only “prior express consent,” not “prior express written consent,” unless the FCC imposes additional rules. And because courts no longer have to automatically defer to official interpretations by the FCC and other agencies, the panel of judges looked directly to the text of the TCPA and ignored FCC precedent. The court concluded that “express consent” includes both oral and written permission and that providing a phone number to a business for purposes of communication satisfies this requirement.

One detail the court emphasized was the ongoing relationship between the parties. Bradford not only gave his phone number to facilitate contact—he continued renewing the service plan and never objected to the calls. In the court’s view, this confirmed that he had indeed consented to be contacted about inspections related to the service agreement he voluntarily renewed.

The Fifth Circuit’s ruling in Bradford contrasts with more restrictive approaches used in circuits like the Ninth, where courts rely more heavily on the FCC rules that require heightened consent. This rejection of deference to the FCC’s written-consent requirement places the Fifth Circuit in the minority of courts that take a strict textual approach to the TCPA, making it more business friendly than those jurisdictions that still defer to the agency’s interpretations.

This shift away from FCC deference comes from recent Supreme Court decisions that significantly curtailed, and in some contexts eliminated, what is known as “Chevron deference.” For decades, courts typically accepted the FCC’s interpretations of the TCPA, even where the statute was silent or ambiguous. But under the new framework, courts look directly to the words of the statute itself rather than defer to an agency simply because the statute leaves room for interpretation. As a result, FCC orders from 2012 and 1992, once treated as binding, are now increasingly viewed as persuasive at most. That shift has opened the door for decisions like Bradford, where the court concluded that the TCPA does not possess a written-consent requirement.

TAKEAWAY: For businesses that use prerecorded calls or text messages for appointment reminders, scheduling, service updates or routine customer contact, understanding what constitutes consent to receiving SMS messages or other types of TCPA-governed communications is critical. This ruling offers an important clarification. In the Fifth Circuit, if a customer provides their cellphone number as part of a transaction or service relationship, that act alone now generally qualifies as “prior express consent” under the TCPA. In order to meet the standard of “prior express consent,” written consent is no longer required in that jurisdiction unless the call constitutes a telemarketing attempt.