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).
In Bradford, the lower court ruled the plaintiff had given the caller his “prior express consent” because he had “provided his cell phone number” to the caller when he signed a service agreement. Bradford v. Sovereign Pest Control of Texas, Inc., 744 F. Supp. 3d 754, 762 (S.D. Tex. 2024). On appeal, the defendant argued that its compliance with the FCC’s “prior express written consent” requirement was irrelevant because the FCC had exceeded its statutory authority in enacting it. See Brief for Respondent at 15–30, Bradford, — F.4th —- (No. 24-20379), 2025 WL 348691.
The Fifth Circuit agreed. It explained that the plain language of the statute “permits either written or oral consent for any auto-dialed or prerecorded call” and “provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent.” Bradford, 2026 WL 520620 at *2. In doing so, it rejected the plaintiff’s reliance on the FCC’s heightened consent requirement, explaining that the plain language of the statute simply “does not require prior express written consent.” Id. at 3. Because the plaintiff had provided his number to the caller, the requisite consent had been provided. Id. Notably, the court also found that the plaintiff’s failure to object to subsequent calls or revoke his consent — common tactics of professional plaintiffs — had amounted to a ratification of his earlier consent.
The decision is the latest post-Chevron example of courts reviewing administrative rulings and rulemakings with a jaundiced eye. See, e.g., McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts. Defendants in other circuits will no doubt work to have other circuits follow the Fifth Circuit’s lead.
