In a decision that now makes it harder for consumers to challenge certain automated calls, a federal appeals court just ruled against a Texas man who claimed he was hounded by illegal robocalls after he admitted to having provided the company his phone number when he signed up for its services.
Background
Radley Bradford signed up for a pest-control plan with Sovereign Pest Control of Texas and, like most customers, wrote down his cell phone number so the company could reach him about the service. Over the next several years, Sovereign sent him prerecorded reminder calls urging him to schedule “renewal inspections” and keep his annual plan going. Bradford not only took the calls—he scheduled visits and renewed his plan multiple times after receiving them.
Eventually, Bradford sued Sovereign for violations of the Telephone Consumer Protection Act of 1991 (TCPA) in a proposed class action. He argued that Sovereign’s reminder and renewal calls were telemarketing calls, and that the company did not have his written permission to send prerecorded messages to his cell phone. Because Bradford had never provided written permission specifically authorizing robocalls, he argued, each call was a violation of the TCPA.
Fifth Circuit Sides with Defendant
After the trial judge sided with the company, Bradford appealed, and the U.S. Court of Appeals for the Fifth Circuit has just affirmed the lower court’s decision. The three-judge panel focused on a key phrase in the TCPA statute: “prior express consent.” According to the court, Congress never said that consent for these kinds of calls must be in writing; consent merely needed to be “express.” In turn, “express” consent means clear, unmistakable permission—but that permission could be provided orally or even through a customer’s actions, not just a signed form. This was an explicit rejection of the FCC’s regulation stating that companies must obtain “prior written consent.” The court explained that the FCC had gone beyond what Congress had authorized and rejected the FCC’s additional “written” consent requirement.
In Bradford’s case, the court pointed to a simple chain of events that constituted “prior express consent”: Bradford voluntarily gave Sovereign his cell number when he signed up for the company’s services; he understood the company would use his phone number to contact him about the service; and confirmed in later conversations with the company that it could call him on his cell phone. He never asked Sovereign to stop calling, and he renewed his service plan four times after receiving the very calls he later claimed were TCPA violations. The court held that this series of actions (and inactions), taken together, constituted clear prior consent as a matter of law.
The ruling underscores a significant line for consumers and businesses alike: while the TCPA still restricts many automated calls, customers who voluntarily provide their numbers to a company and continue engaging with its services may be foreclosed from later arguing they never agreed to be contacted.
Does Bradford Deviate from Other Circuits’ Decisions?
Bradford is genuinely significant: It is the most explicit appellate holding that the FCC’s “prior express written consent” requirement for telemarketing calls exceeds the statute — and that oral or implied-from-conduct consent satisfies the TCPA for pre-recorded and artificial calls to wireless numbers, including when those calls constitute telemarketing. That is a real break from how practitioners have operated under the 2012 FCC framework for over a decade.
However, Bradford is not the first time an appellate court has reined in FCC’s rulemaking authority. Indeed, the trend has been pointing toward courts conducting independent statutory analysis of the TCPA, and not simply accepting the FCC’s take on what Congress meant to legislate. The Eleventh Circuit’s January 2025 decision in Insurance Marketing Coalition v. FCC is a prime example — that court independently analyzed the TCPA and rejected the FCC’s 2023 One-to-One Consent Rule in favor of the ordinary statutory meaning of “prior express consent.” The appellate court held that the FCC’s rule exceeded statutory authority. Critically, however, the IMC court explicitly declined to address whether the 2012 written consent requirement for telemarketing calls was itself valid, noting in a footnote that “the 2012 Order is not at issue in this case.” The Fifth Circuit in Bradford directly answered that question.
In that way, Bradford goes further than IMC, applying Loper Bright independent analysis to conclude that the FCC’s written-consent-for-telemarketing rule — at least as applied to pre-recorded and artificial voice calls — is an agency add-on with no basis in the statutory text, and discarded it.
Will Other Courts Follow?
The post-Loper Bright trajectory favors more courts eventually reaching the same conclusion as Bradford, but it will not happen quickly or uniformly. The statutory text of 47 U.S.C. § 227(b)(1) says “prior express consent” — full stop. It does not say “written.” The FCC grafted the written consent requirement onto the statute in 2012 rulemaking, and under Chevron that might have survived. Under Loper Bright, courts must independently assess whether that regulatory addition is consistent with the statute — and the textual argument against the written consent requirement is a strong one.
As IMC already showed, courts are willing to vacate FCC rulemaking that conflicts with the statute’s plain text. The Supreme Court then reinforced that same interpretive framework specifically for the TCPA in McLaughlin (June 2025), holding that district courts are not bound by FCC interpretations and must independently assess the statute using ordinary tools of statutory construction. Bradford is the natural next step in that progression.
That said, the reality on the ground is messy. At the district court level, Bradley v. DentalPlans.com (D. Md.) ran in the opposite direction — that court held that written disclosures for telemarketing consent must be in writing and cannot be captured via voice recording alone. When the defendant sought to immediately appeal that ruling, the Fourth Circuit declined interlocutory review in April 2025, leaving the case to proceed at the district court level and producing no circuit-level ruling on the written consent question in that jurisdiction. District courts are reaching divergent conclusions, and consensus across circuits is unlikely to come quickly.
Bradford opens the door, but other circuits will need to walk through it themselves — and some may not. Until there is a circuit split that the Supreme Court steps in to resolve, businesses and litigants face a genuinely fragmented landscape where the consent rules depend heavily on which courthouse you are standing in.
Compliance Complexity for Businesses
Bradford creates real compliance tension. In the Fifth Circuit, the written consent requirement for telemarketing robocalls is now effectively unenforceable — oral or conduct-based consent that is “positive, direct, and unequivocal” can suffice. But the FCC’s written consent regulation remains on the books everywhere else, and the FCC has not withdrawn it. A national company abandoning written consent practices based on Bradford is taking a serious risk.
Our advice: maintain written consent practices as your baseline while actively monitoring how other circuits respond. For clients in the Fifth Circuit facing existing litigation, Bradford is a powerful defense argument to deploy at once.
More broadly, Loper Bright, McLaughlin, and Bradford have collectively dismantled the deference architecture that allowed the FCC to expand the TCPA beyond what Congress enacted. Companies facing TCPA exposure should be working with counsel to systematically identify and challenge FCC interpretations that cannot be squared with the statutory text. We are already seeing this in litigation under Section 227(c)(5), where defendants are arguing with real traction that text messages are not “telephone calls” under the statute’s plain language — a challenge that was a nonstarter in the Chevron era but is now a live issue courts are taking seriously. The legal landscape has shifted fundamentally, and courts are thoughtfully considering statutory interpretation arguments, rather than blindly deferring to past agency interpretations.
