On February 25, 2026, the U.S. Court of Appeals for the Fifth Circuit shook the telemarketing law snow globe. In Bradford v. Sovereign Pest Control of TX, Inc., it held that the Telephone Consumer Protection Act does not require “written” consent for any type of pre-recorded call, creating a direct conflict with existing Federal Communications Commission regulations. This is the latest entry in a string of opinions challenging TCPA orthodoxy, but the first in which an appellate court has weighed in. 

What Did The Court Say?

In Bradford, the plaintiff claimed that Sovereign Pest violated TCPA by placing pre-recorded "renewal inspection" calls to his cell phone without obtaining his prior express written consent. While the district court found the calls did not constitute telemarketing, Bradford appealed, and the Fifth Circuit instead chose to focus its analysis on the TCPA's consent requirements.

Applying a de novo review, the appellate court determined that Bradford provided the necessary consent by giving his cell phone number to Sovereign Pest during a service-plan agreement specifically so the company could contact him. It held that the TCPA requires only “prior express consent,” which can be oral or written, for any auto-dialed or pre-recorded call, regardless of whether it is classified as a marketing or informational call.  Because the text of the statute does not require "written" consent, and Bradford never objected to the calls, the court concluded that no TCPA violation occurred.

How Did We Get Here?

Last year, the U.S. Supreme Court held that lower courts are no longer required to afford deference to FCC orders. Instead, they must apply ordinary principles of statutory interpretation, while merely treating the agency’s interpretation as persuasive (for more, see our blog here). This was Loper Bright overturning Chevron deference, but for telemarketing. Almost a year on, the cracks are starting to show.

Under new deference rules, courts have been examining statutory text on their own, resulting in generalist judges taking scalpels to the niche area of telemarketing law. Of the post-McLaughlin outcomes so far, the 5th Circuit's may stray the furthest from the status quo.

It’s long been established that marketing calls required prior express written consent, while transactional/informational calls required prior express consent, which could be implied through transaction or existing business relationship. This has been codified in the federal regulations, but is not directly in the statute. Applied broadly, this framework can result in cognitive dissonance where teams rely on FCC guidance, but are witnessing drastically different outcomes in the courts.

What's Next?

The 5^th Circuit can often be an outlier, but its holding follows others at the district court level that starkly reframe telemarketing compliance and reflect a growing divergence on long-held TCPA tenets. Perhaps most notably: two courts have now held that texts are not subject to the TCPA at all, given the statute (written two years before the advent of SMS) only references "calls." The TCPA's application to text messages is a creature of agency regulation and response to technological advancement, but the durability of this interpretation is increasingly uncertain.

Evidently, many long-held tenets are at risk of invalidation as administrative deference crumbles. The immediate impact of this trend will be in the courts: litigation defense strategies will change to account for new case law and principles of deference. For telemarketing compliance teams, adjustments cannot be made until a consensus emerges in the courts, which seems a near-impossibility given current volatility. For now, we have little choice but to embrace the chaos.