Fifth Circuit Holds That Prerecorded Calls Require Only Prior Express Consent — Not Prior Express Written Consent

On February 25, 2026, Judge Jennifer Walker Elrod, Chief Judge of the United States Court of Appeals for the Fifth Circuit, held that a pest control company did not violate the Telephone Consumer Protection Act (TCPA) when it made prerecorded calls to the cell phone of a customer who had provided prior express consent to receive those calls because the TCPA requires nothing more than express consent for prerecorded calls.¹

The United States District Court for the Southern District of Texas granted summary judgment in favor of Sovereign Pest Control of TX, Inc. (Sovereign) on plaintiff Radley Bradford's claim that Sovereign violated the TCPA by sending him "unsolicited" prerecorded renewal-inspection calls "for years" without first obtaining his prior express written consent. The district court granted summary judgment in Sovereign's favor, concluding both that the calls at issue did not constitute telemarketing and that Bradford had provided prior express consent. Bradford appealed, contending that the calls were telemarketing and that Bradford did not provide prior express written consent.

On appeal, the Fifth Circuit agreed with the district court that Bradford had, indeed, provided express written consent. Specifically, the Fifth Circuit noted that Bradford had provided his cell phone number when he entered into a service agreement with Sovereign, confirmed that Sovereign could call him at that number, did not limit the calls to appointment reminders, and never objected to the calls or asked Sovereign not to call him. The Fifth Circuit further considered relevant that the service agreement provided that the parties could extend the agreement annually and that the parties had done so four times.

Critically, and what makes this big news, is that the Fifth Circuit also found that the TCPA did not require express written consent for prerecorded calls. The court found that "contrary to the FCC's regulation, Congress permits either written or oral consent for any auto-dialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has 'the prior express consent of the called party,'" and that "[t]he statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent."² Thus, the court concluded that "[w]hether Sovereign Pest's pre-recorded calls to Bradford qualify as telemarketing or informational calls, those calls required only prior express consent for Bradford."³

Although this ruling currently applies only within the Fifth Circuit, it offers a potential defense to all defendants by suggesting that the plaintiff may have given consent through oral approval or potentially even through their actions. At Buchanan, our experienced consumer protection teams provide guidance on compliance with federal and state consumer protection laws, including the TCPA and similar state laws. We offer robust defense strategies against litigation arising from alleged violations of these laws, including advising companies on how to craft clear and enforceable telemarketing policies and consent provisions. Contact us with any questions regarding TCPA compliance or litigation defense strategies your company may be facing.

Footnotes

1 Bradford v. Sovereign Pest Control of TX, Incorporated, 2026 WL 520620 (5th Cir. Feb. 25, 2026).

2 Id. at 2 (quoting 47 U.S.C. § 227(b)(1), (b)(1)(A), (b)(1)(A)(iii).

3 Id.

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