Fifth Circuit Rejects Application of FCC’s Prior Express Written Consent Requirement for Telemarketing Robocalls in TCPA Litigation

On February 26, 2026, in Bradford v. Sovereign Pest Control of TX, Inc., the Fifth Circuit held that the TCPA permits either written or oral consent for autodialed or pre-recorded/artificial voice telemarketing calls, explicitly rejecting the Federal Communications Commission’s (“FCC”) regulations imposing a prior express written consent requirement for such calls.  The Fifth Circuit’s decision applies the principles previously articulated in the United States Supreme Court’s Loper Bright and McLaughlin one-two punch: courts are not bound by FCC interpretations of the TCPA and are free in TCPA litigation outside a direct appellate challenge to an FCC rule, to interpret the statute contrary to longstanding FCC authority.

In 2012, the FCC adopted a Report and Order revising the Commission’s TCPA rules to require “prior express written consent” – a newly defined term in the FCC’s rules with specific, listed elements – for all autodialed or prerecorded/artificial voice telemarketing calls to wireless numbers, and for prerecorded/artificial voice telemarketing calls to residential lines.  The FCC acknowledged that the text of the TCPA was “silent” on what type of express consent—oral, written, or some other kind—was required for autodialed or pre-recorded telemarketing calls.  The FCC then stated that it had “discretion” to adopt a prior express written consent requirement to “harmoniz[e]” the FCC’s rules with the Federal Trade Commission’s Telemarketing Sales Rule, which requires prior written consent for pre-recorded telemarketing calls.

Since the rule’s adoption, courts have applied the FCC’s prior express written consent requirement for autodialed and prerecorded telemarketing calls without independently analyzing the TCPA’s statutory text.  The Fifth Circuit in Bradford rejected this approach, stating that the Supreme Court’s Loper Bright and McLaughlin decisions require the court to independently interpret the statute to determine whether telemarketing robocalls require written consent.

In Loper Bright Enterprises v. Raimondo, a 6-3 Supreme Court majority in 2024 eliminated the Chevron deference doctrine, which required courts to defer to a federal agency’s reasonable interpretation of federal statutes.  Instead, courts are to apply the “best reading” of a statute, which is the “one the court, after applying all relevant interpretative tools, concludes is best.”  For the FCC, this holding, at the time, was limited to direct appellate challenges to FCC rules.  In district court TCPA litigation, courts were still bound to follow the particular FCC rule, which, under the Court’s then interpretation of the Hobbs Act, could not be collaterally attacked in district court litigation.

This all changed a year later in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., where the Supreme Court further considered whether, pursuant to the Hobbs Act, which grants circuit courts of appeal exclusive jurisdiction to determine the validity of certain federal agency orders, a district court was bound by the FCC’s determination that online fax services fell outside the scope of the TCPA.  The Supreme Court said “no.”  Rather, as we discussed in our prior alert on McLaughlin, in TCPA litigation, district courts must “independently” interpret the statute, applying “ordinary principles of statutory interpretation” while affording “appropriate respect” to the FCC’s interpretation.

The Fifth Circuit in Bradford builds on the principles articulated in Loper Bright and McLaughlin, and applies them with a vengeance.  The case arose from a service-plan agreement between the Plaintiff, Radley Bradford, and Defendant Sovereign Pest Control, to provide pest-control treatment at the Plaintiff’s home.  The Plaintiff brought a class action in the Southern District of Texas alleging that Defendant’s “unsolicited prerecorded calls” inviting him to schedule “renewal inspections” constituted “telemarketing” calls requiring his “prior express written consent” under the FCC’s rules, which he had not provided.  The district court granted summary judgment in favor of the Defendant after finding that the calls were “informational” (rather than telemarketing-related), and thus required only the Plaintiff’s “prior express consent” (as opposed to “prior express written consent”), which the district court found the Plaintiff provided when he entered into a contract with the Defendant.  Plaintiff appealed.

In affirming the district court’s grant of summary judgment in favor of the Defendant, the Fifth Circuit held that it made no difference whether the pre-recorded calls were “telemarketing” or “informational” because either type of call required only “prior express consent.”  Applying Loper Bright and McLaughlin, the Fifth Circuit stated that “courts must interpret the meaning of Congress’s enacted text according to ordinary principles of statutory interpretation, without deference to an agency’s reading.”  In other words, the Fifth Circuit found that it was not bound by the FCC’s “prior express written consent” requirement for telemarketing robocalls, and it must instead independently interpret the TCPA.

Turning first to the plain meaning of the TCPA, which prohibits pre-recorded calls to wireless numbers absent the “prior express consent” of the called party, the Fifth Circuit determined that the plain meaning of the phrase “prior express consent” encompasses consent given either orally or in writing.  The Fifth Circuit further noted that the TCPA provides no basis for concluding that telemarketing calls require written consent. The court therefore concluded that the TCPA permits either written or oral consent for auto-dialed or pre-record calls whether such calls qualify as “informational” or “telemarketing.”  Because the lower court in Bradford found that the Plaintiff provided “prior express consent” for pre-recorded calls, the Fifth Circuit found that no more was required. Thus, in the Fifth Circuit prior express written consent is not required for auto-dialed or pre-record calls; oral consent is sufficient.

The Bradford decision is not the first to reject the FCC’s interpretation of consent requirements under the TCPA.  In January 2025, the Eleventh Circuit in Insurance Marketing Coalition Limited v. FCC (“IMC decision”), followed Loper Bright in vacating two TCPA consent requirements added by the FCC, including the so-called “one-to-one consent” rule (intended to curb perceived lead generator abuses), which provided that any required consent for robocalls be limited to one identified seller at a time.  IMC, however, involved a direct challenge to the rule under the Hobbs Act.  The Fifth Circuit in Bradford went further, applying McLaughlin in a TCPA civil enforcement proceeding to support an interpretation of the TCPA’s “prior express consent” requirement that is contrary to a longstanding FCC rule.¹

As we explained in our prior alert on the IMC decision, the Eleventh Circuit in IMC also explicitly criticized the FCC’s prior express written consent rule on the same grounds as its critique of the one-to-one consent rule, but whether because of the application of the Hobbs Act at the time or that the issue was not explicitly before the court, chose not to set it aside.  However, now given McLaughlin and the Fifth Circuit Bradford opinion, it seems likely that it is only a matter of time before the fate of the prior express written consent rule will be at issue in the Eleventh Circuit, as well.  

These post-Loper and post-McLaughlin decisions make clear that courts will now be applying their own judgment in interpreting the TCPA.  To be clear, courts must still afford the FCC’s rules and decisions “appropriate respect” even though they are not binding on the court.  As we previously discussed in our McLaughlin alert, this gives rise to new opportunities for businesses to defend against TCPA claims based on FCC rules and decisions that may be at odds with the TCPA’s statutory text, but also carries increased risk for TCPA liability given the resulting uncertainty over TCPA requirements.  

¹ Some district courts have similarly interpreted other longstanding FCC rules and decisions as contrary to the plain meaning of the TCPA, rejecting TCPA claims based on those rules, though those decisions have not yet made it to a circuit court.  See e.g., Davis v. CVS Pharmacy, Inc., 797 F.Supp.3d 1270, 1275 (N.D. Fla. Aug. 26, 2025) (text messages are not “calls” under the TCPA); Jones v. Blackstone Medical Services, LLC, 792 F.Supp.3d 894, 901 (C.D. Ill. Jul. 21, 2025) (same)