The Fifth Circuit has rejected the FCC rule that has imposed a heightened “prior express written consent” requirement—a requirement found nowhere in the TCPA’s plain language—for more than a decade. See Bradford v. Sovereign Pest Control of Texas, Inc., No. 24-20379, 2026 WL 520620, at *3 (5th Cir. Feb. 25, 2026). Citing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it found that the “prior express written consent” rule is unenforceable because the FCC had exceeded its statutory authority in enacting it.
From 1991 to 2012 — more than 20 years — it had been the FCC’s consistent position that consent can be “expressed” simply by providing one’s number — i.e., without a “written” or “signed” agreement. See, e.g., In re Rules & Reguls. Implementing the Tel. Consumer Prot. 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…”). It was not until 2013 that the FCC reversed course, enacting a rule requiring that consent for certain communication not only be “express” but also that it be “written,” “bear[] the signature of the person called,” and include various and sundry disclosures the FCC deemed desirable. See 47 C.F.R. §§ 64.1200(f)(9).