Fifth Circuit Upends Longstanding TCPA Written Consent Rule

Yesterday, the U.S. Court of Appeals for the Fifth Circuit held that telemarketing robocalls do not require written consent under the Telephone Consumer Protection Act of 1991 ("TCPA"). This landmark decision departs from longstanding interpretations of TCPA consent requirements. And, importantly, it underscores how recent U.S. Supreme Court decisions curtailing deference to agency statutory interpretation opens the door for major change to regulatory frameworks.

Regulatory Background and the Fifth Circuit's Decision

In 2012, the Federal Communications Commission—the agency charged with implementing the TCPA—revised TCPA regulations to require written consent from consumers before sending automated or prerecorded telemarketing messages. For "informational" messages, the FCC allowed a more flexible approach for consent. The statute, however, makes no mention of written consent, only "prior express consent." Nevertheless, for nearly 15 years, essentially every court has accepted and applied the FCC's prior express written consent requirement. TCPA battle lines often were drawn around whether messages were "telemarketing" or "informational" and whether the consent and form of written consent conformed to the FCC's definition.

Not so in Bradford v. Sovereign Pest Control of TX, Inc. There, the plaintiff alleged familiar TCPA allegations that a company had sent him unsolicited, prerecorded messages without obtaining written consent. The district court dismissed the case because the messages at issue were "informational," not "telemarketing," and thus were not required to meet the stringent standard of "prior express written consent."

The Fifth Circuit agreed—but went further. The court held that the TCPA requires only "prior express consent" for automated or prerecorded calls to wireless numbers without distinguishing between written and oral consent or "telemarketing" and "informational" calls. Examining the statute's plain language, the court explained that "express consent" means either oral or written consent without any requirement that such consent be memorialized. The court then focused on the plaintiff's conduct and held that the defendant obtained prior express consent because plaintiff provided his number for the purpose of being contacted about the defendant's services.

Relying on recent Supreme Court decisions Loper Bright and McKesson Corp., the court interpreted the TCPA without deferring to the FCC's regulatory gloss. As a result, the FCC's longstanding interpretation carried no weight and the court explicitly rejected the FCC's written-consent requirement because the statute itself imposed none. Now, a consent requirement that was once considered a basic tenet of TCPA litigation has been swept away, at least in the Fifth Circuit.

Key Takeaways

Sovereign Pest Control is a major TCPA decision supporting the view that the TCPA imposes no written consent requirement regardless of whether calls are "informational" and "telemarketing." In the Fifth Circuit, the FCC's written-consent requirement under 47 C.F.R. § 64.1200(a)(2) no longer applies. This case will reverberate through the industry.

To be clear, this decision only applies in the Fifth Circuit and most robocallers should not change their practices. As other circuits consider the issue, the Fifth Circuit's logic may be rapidly adopted or another TCPA circuit split may arise. And even in the Fifth Circuit, callers should continue to document consent thoroughly. The lack of clear evidence demonstrating consent may open the door to unpredictable jury trials.

More broadly, the case highlights how Loper Bright and McKesson Corp. can reshape statutory interpretation and implementation, even under well-established frameworks. The FCC has created a patchwork of TCPA rules of questionable statutory support, and this decision may invite additional challenges to FCC rules that lack clear statutory support.

Looking ahead, the Fifth Circuit may have signaled the next TCPA challenge—and it may not be good news for robocallers. The court noted plaintiff's argument that giving one's phone number to a company is implicit, not express, consent, and thus is insufficient to meet the TCPA's consent requirement. That idea challenges another longstanding FCC interpretation that merely providing a phone number to another constitutes prior express consent. Although the court rejected plaintiff's argument on the facts presented, the FCC's "phone-number-equals-express consent" rule may receive closer scrutiny in a post-Loper Bright landscape.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.