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.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, was quoted in a Corporate Counsel article (subscription required) on the ruling by the U.S. Court of Appeals for the Fifth Circuit that the Biden administration had likely violated the First Amendment for “coercing” social media platforms to take down “disfavored” content from their sites that it deemed to be misinformation about topics such as COVID-19 or the 2020 elections.