TCPA § 227(b)(1)(A)(iii): “Prior Express Consent” Includes Oral Consent; Written Consent Not Required for Prerecorded Calls (Even if Telemarketing)

1. Introduction

Bradford v. Sovereign Pest Control of TX, Incorporated (5th Cir. Feb. 25, 2026) is a Telephone Consumer Protection Act (TCPA) case arising from prerecorded “renewal inspection” calls placed to a customer’s cell phone during an ongoing home pest-control service relationship.

Parties. Radley Bradford (plaintiff–appellant) sued Sovereign Pest Control of TX, Inc. (defendant–appellee), alleging the company made unlawful prerecorded calls to his wireless number.

Key issues. The appeal presented two core questions:

  1. Whether Sovereign Pest’s prerecorded renewal-inspection calls were “telemarketing” (which, under an FCC regulation, would require prior express written consent).
  2. Whether Bradford gave “prior express consent” at all, given that he provided his cell number in the parties’ service-plan agreement.

The Fifth Circuit affirmed summary judgment for Sovereign Pest, holding Bradford gave “prior express consent” and, critically, that the TCPA’s text does not require “prior express written consent” for prerecorded calls to wireless numbers—regardless of whether they are telemarketing.

2. Summary of the Opinion

The court affirmed the district court’s summary judgment for Sovereign Pest. While the district court had concluded both that (1) the calls were not telemarketing and (2) Bradford gave prior express consent, the Fifth Circuit’s affirmance rested on a broader statutory holding: the TCPA requires only “prior express consent” (oral or written) for prerecorded calls to wireless numbers, and does not require “prior express written consent” for any subset of such calls.

Applying that statutory reading, the court found Bradford’s consent established as a matter of law because he supplied his cell number in the service-plan agreement so the company could contact him, confirmed later that Sovereign Pest could call him, never revoked consent, and repeatedly renewed the contract after receiving the calls.

3. Analysis

A. Precedents and Authorities Cited

1) Standard of review and summary judgment framework

  • Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752 (5th Cir. 2011) — Cited for de novo review of summary judgment, emphasizing that the appellate court applies the same standard as the district court.
  • Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286 (5th Cir. 2010) — Cited for the burden on the movant to demonstrate entitlement to summary judgment.

2) The TCPA’s purpose and basic statutory framing

  • Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686 (5th Cir. 2021) — Used to situate the TCPA as Congress’s response to “nuisances” posed by robocalls/robotexts, reinforcing that the case turns on statutory limits and statutory exceptions (notably, “prior express consent”).

3) Post-Loper Bright statutory interpretation and agency deference

  • McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025) (citing Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)) — The court relies on these decisions to frame its interpretive posture: courts must interpret enacted text using “ordinary principles of statutory interpretation,” “without deference” to agency readings.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) — Quoted for the proposition that courts interpret statutes using “traditional tools of statutory construction,” “no matter the context.”

4) Plain-meaning methodology

  • Sample v. Morrison, 406 F.3d 310 (5th Cir. 2005) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989)) — Cited for the “plain meaning” starting point in statutory interpretation.
  • United States v. Northington, 77 F.4th 331 (5th Cir. 2023) — Cited in the same vein as confirming the primacy of text and ordinary interpretive tools.

5) Issue preservation / forfeiture

  • Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743 (5th Cir. 2023) (citing Sahara Health Care, Inc. v. Azar, 975 F.3d 523 (5th Cir. 2020)) — The court invokes this line to note that arguments raised for the first time in reply are “generally forfeited,” which undermined Bradford’s attempt to pivot late to an “implicit consent” theory.

6) FCC regulations and FCC orders addressed (and effectively narrowed)

  • 47 C.F.R. § 64.1200(a)(2) — The regulation prohibits prerecorded calls that include an advertisement or constitute telemarketing absent “prior express written consent.” The Fifth Circuit expressly states this requirement is “contrary” to what Congress enacted in the TCPA’s “prior express consent” exception.
  • In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830 (Feb. 15, 2012) [hereinafter Implementing the TCPA] — Cited for the FCC’s telemarketing vs. “informational calls” framework and for the Commission’s choice to require written consent for telemarketing but “flexibility” for informational calls.
  • In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752 (Oct. 16, 1992) — Quoted for the FCC’s early view that callers do not violate rules by calling numbers “provided as one at which the called party wishes to be reached.”

How these authorities influenced the outcome. The court’s key move is methodological: post-Loper Bright, it treats the statutory text—not the FCC’s telemarketing/written-consent overlay—as controlling. The plain-meaning analysis then drives the substantive holding that “express consent” includes consent given “viva voce” (orally) and “in writing,” with no textual basis for a telemarketing-only written-consent requirement in § 227(b)(1)(A)(iii).

B. Legal Reasoning

1) The statute’s operative prohibition and exception

The TCPA makes it unlawful to make certain calls to wireless numbers using an “artificial or prerecorded voice” (among other technologies), unless the call is for emergency purposes or made with “the prior express consent of the called party.” The court anchors its analysis in this statutory exception: “prior express consent” is the sole consent standard Congress specified for prerecorded calls to cell phones under § 227(b)(1)(A)(iii).

2) “Express consent” means oral or written consent (and the court treats that as dispositive)

The Fifth Circuit consults contemporaneous legal meaning at enactment, quoting Black’s Law Dictionary (6th ed. 1990) for “express consent” as consent “directly given, either viva voce or in writing,” and defines “viva voce” as “by word of mouth.” This supports the court’s conclusion: Congress authorized oral or written consent for prerecorded calls, and did not distinguish telemarketing from informational calls in the statute’s consent exception.

3) The FCC’s written-consent rule cannot add a statutory requirement

While acknowledging the FCC’s regulation and orders that draw telemarketing/informational lines and impose a “prior express written consent” requirement for telemarketing prerecorded calls, the court states there is “no basis” in the statute for that distinction. In effect, the court treats the regulation’s extra requirement as non-controlling in litigation “like this one” where the question is what Congress’s enacted text requires.

As a result, the court does not need to resolve whether Sovereign Pest’s calls were telemarketing. It holds that even if they were telemarketing, § 227(b)(1)(A)(iii) would require only “prior express consent,” not “prior express written consent.”

4) Application: Bradford gave “prior express consent” as a matter of law

On the record, the court concludes Bradford’s consent was express and prior:

  • He provided his cell number on the service-plan agreement.
  • He stated he provided it so Sovereign Pest could contact him if needed.
  • He later confirmed in conversations that Sovereign Pest could call his cell phone.
  • He never objected or asked the company to stop calling.
  • The calls led to inspections; he scheduled inspections and renewed the plan four times.
  • The contract contemplated annual extensions by mutual consent, and the renewal inspections facilitated renewal decisions—supporting the scope of consent.

5) Forfeiture as an alternative barrier

Bradford’s late-raised argument that providing a number is merely “implicit” consent was also weakened procedurally: the court notes that arguments raised for the first time in reply are generally forfeited. But the court goes further and rejects the point on the merits because, in its view, Bradford’s conduct constituted express consent.

C. Impact

1) Telemarketing vs. informational classification may matter less—at least for § 227(b)(1)(A)(iii) consent disputes in the Fifth Circuit

The opinion’s practical thrust is to neutralize a common litigation hinge: whether a prerecorded call is “telemarketing” (triggering a written-consent demand under FCC rules) or “informational.” The Fifth Circuit says the statute itself requires only “prior express consent” for prerecorded calls to wireless numbers, and “requires no more for any type of pre-recorded calls.”

2) A post-Loper Bright signal: regulations cannot add consent elements beyond the statute

By explicitly labeling the FCC’s telemarketing written-consent requirement “contrary” to the TCPA’s text, the court signals that, in private TCPA actions (and similar enforcement contexts), litigants cannot assume the FCC’s additional consent conditions will be treated as binding if they exceed the statute.

3) Business-to-customer “provide your number for contact” scenarios get a clearer safe harbor

The court’s application suggests that when a consumer provides a wireless number in the course of a service relationship for contact purposes, that act can constitute “prior express consent” for related service communications, including prerecorded calls used to schedule or facilitate contractually contemplated inspections/renewals—absent limitation or revocation.

4) Litigation strategy and pleading consequences

Plaintiffs within the Fifth Circuit may face steeper hurdles if their theory depends chiefly on the absence of “written” consent. Defendants may correspondingly focus on documenting the circumstances under which a number was provided and whether the consumer limited or revoked consent.

4. Complex Concepts Simplified

  • TCPA: A federal statute restricting certain automated or prerecorded calls/texts, especially to cell phones.
  • Artificial or prerecorded voice: A recorded message or synthetic voice delivered by phone (commonly “robocalls”).
  • Prior express consent: Permission given before the call, clearly and directly. The court emphasizes it can be given orally (“viva voce”) or in writing.
  • Prior express written consent: A stricter, written form of permission required by an FCC regulation for certain telemarketing prerecorded calls—but the Fifth Circuit holds the TCPA’s text does not impose that extra requirement for § 227(b)(1)(A)(iii).
  • Telemarketing vs. informational calls: FCC categories distinguishing sales/advertising calls from service/notice calls. The court treats this distinction as non-dispositive for the statutory consent requirement at issue.
  • Summary judgment: A pretrial ruling where the court decides there is no genuine dispute of material fact and one party wins as a matter of law.
  • De novo review: The appellate court reviews the issue fresh, without deferring to the district court’s legal conclusions.
  • Forfeiture: Losing the ability to rely on an argument because it was not raised at the proper time (e.g., held back until a reply brief).

5. Conclusion

Bradford v. Sovereign Pest crystallizes a significant Fifth Circuit rule for TCPA prerecorded-call claims to wireless numbers: the statutory exception in 47 U.S.C. § 227(b)(1)(A)(iii) requires only “prior express consent,” which includes oral consent and is not elevated to a “written consent” requirement merely because a call could be characterized as telemarketing under FCC regulations.

The decision is also a notable post-Loper Bright application: the court foregrounds statutory text over agency embellishments, and it treats “express consent” as having its ordinary meaning at enactment. For regulated entities, it reinforces the importance of documenting how a consumer provided a number and whether consent was ever limited or revoked; for plaintiffs, it narrows a path that depends on the absence of written consent alone.