Major TCPA Shift: Fifth Circuit Rules Oral Consent Is Valid

Following the Supreme Court's decision in McLaughlin Chiropractic Associates v. McKesson Corp., which we discussed last year in depth, federal courts have gained the ability to deviate from the Federal Communications Commission's interpretations of the Telephone Consumer Protection Act (TCPA). Last week, the Fifth Circuit Court of Appeals issued what may be the most consequential decision yet in the post-McLaughlin world by rejecting the FCC's 2013 ruling that a customer's express consent under the TCPA must be in written form. This FCC rule imposed a heightened "prior express written consent" requirement, despite written consent not appearing anywhere in the TCPA's text.

From 1991 through 2012, the FCC consistently maintained that consent under the TCPA could be "expressed" simply by providing a telephone number, with no requirement that the consent be written or signed (see, e.g., In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, ¶ 31 (1992) ("[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called...")). In 2013, the FCC reversed course and adopted a rule requiring that consent for certain communications be not only "express," but also in writing, signed by the called party, and accompanied by a number of prescribed disclosures (see 47 C.F.R. § 64.1200(f)(9)). The requirement to have prior express written consent remained the standard for nearly 13 years until the Supreme Court ruled that the FCC's guidance no longer requires deference.

On February 25, 2026, in Bradford v. Sovereign Pest Control, the Fifth Circuit conducted an ordinary statutory review of the TCPA's restrictions on auto-dialed or pre-recorded messages. The case was brought by a customer who acknowledged that he had provided his phone number to the defendant pest control company after signing a service contract. The company sent him several pre-recorded messages concerning his services. The customer then sued the company on the ground that he had not given express consent in writing to be contacted by pre-recorded calls, citing the FCC's ruling that a caller must have prior express written consent to send pre-recorded calls.

The district court granted summary judgment for the company on the reasoning that the customer had given express consent in oral form. Prior to McLaughlin, this would have been impossible due to the FCC's ruling requiring prior express consent to be in writing, but the district court took full advantage of its latitude to second-guess the FCC's interpretation. And the Fifth Circuit has now agreed, becoming the first federal appeals court to hold that prior oral express consent is just as valid as written consent.

This is a radical shift in the world of TCPA compliance, where companies have operated for over a decade under the assumption that consent in written form is non-negotiable. Because consent is so frequently at issue in TCPA suits, it is almost certain that other circuit courts will weigh in on this issue. The odds are high that either the Supreme Court or Congress will have to be the final word on whether oral consent suffices under the TCPA.

In the meantime, compliance strategies should remain conservative. Businesses should resist the temptation to relax their consent practices. Outside of the Fifth Circuit, at least some courts will continue to require that TCPA consent be in writing. Additionally, some state-law telemarketing regulations mandate consent be in writing. Companies should continue to obtain consent in written form and ensure that the consent records are easily accessible and producible.

The decision reflects an emerging trend of courts scrutinizing FCC interpretations of the TCPA more closely and declining to follow them where they appear inconsistent with the statute itself. That shift could encourage additional challenges to the FCC's consent regulations and may ultimately push the agency to reassess its current approach.

We will continue to monitor the fast-evolving world of consent and other pressing issues under the TCPA, so stay tuned in.

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