This week, the Fifth Circuit Court of Appeals issued a notable decision interpreting the consent requirements of the Telephone Consumer Protection Act (TCPA). The court held that prior express consent under the TCPA may be given orally or in writing, even for telemarketing calls made using an automatic telephone dialing system (ATDS) or a prerecorded message.
The decision narrows a long‑standing regulatory distinction and reflects growing judicial skepticism toward agency interpretations that extend beyond statutory text.
Background
In the case Bradford v. Sovereign Pest Control of Texas, Inc., the plaintiff provided his cell phone number in a service agreement for the purpose of being contacted. The defendant then made several prerecorded message calls to schedule a renewal inspection. The plaintiff answered those calls and repeatedly renewed his service plan after receiving them. Later, the plaintiff alleged that prerecorded renewal calls violated the TCPA because they were telemarketing calls made without prior express written consent. The district court determined that the calls were not telemarketing and that Bradford had given prior express consent.
The Fifth Circuit affirmed and clarified that, whether the defendant’s prerecorded calls were classified as telemarketing or informational, they required only prior express consent.
The Court’s Reasoning
The TCPA prohibits ATDS or prerecorded calls to cell phones unless the caller has “the prior express consent of the called party.” The statute itself does not distinguish between written and oral consent or telemarketing and informational calls.
That distinction originates from FCC regulations, which require “prior express written consent” for telemarketing calls and only “prior express consent” for informational calls. In effect, the FCC added a written‑consent requirement for telemarketing calls that does not appear in the TCPA’s statutory language.
The Fifth Circuit declined to defer to that regulatory interpretation. Citing recent decisions limiting judicial deference to agency interpretations—most notably Loper Bright v. Raimondo and McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.—the court emphasized that it must interpret the statute as written by Congress.
Looking to the ordinary meaning of “express consent” at the time the TCPA was enacted, the court concluded that express consent encompasses both oral and written consent. The court found no textual basis for imposing a stricter consent requirement for prerecorded telemarketing calls than for prerecorded informational calls.
A Broader Judicial Trend
The Bradford decision aligns with a broader TCPA regulation interpretation trend, such as the Eleventh Circuit’s decision vacating the FCC’s one‑to‑one consent rule. Courts have increasingly questioned agency regulations imposing consent requirements that go beyond what Congress clearly enacted. These cases signal a shift toward closer adherence to statutory text and reduced deference to expansive regulatory interpretations.
What Businesses Should Know
For businesses using prerecorded messages, the decision may have limited immediate impact on existing compliance strategies, largely because the federal Telemarketing Sales Rule—enforced by the Federal Trade Commission—generally prohibits prerecorded telemarketing calls without prior written consent.
The Fifth Circuit’s ruling applies in Louisiana, Mississippi, and Texas. Other federal circuits have not yet adopted the same interpretation and may reach different conclusions. In addition, many states maintain their own telemarketing and prerecorded call laws that impose stricter consent requirements, regardless of federal law.
As TCPA enforcement and interpretation continue to evolve, businesses should continue monitoring developments at both the federal and state levels. And remember: reliance on any type of consent should be clearly documented.
