Fifth Circuit Confirms: Oral Consent Is Enough Under the TCPA

Why It Matters

The ruling clarifies federal consent standards, reducing TCPA risk for companies using automated outreach, yet it creates a patchwork of obligations across states and circuits.

Key Takeaways

• Fifth Circuit accepts oral consent for TCPA calls
• Providing phone number counts as prior express consent
• Decision aligns with McLaughlin statutory interpretation
• State “mini‑TCPA” laws may still require written consent
• Other circuits may differ, prompting nationwide compliance review

Pulse Analysis

The Telephone Consumer Protection Act has long been shaped by FCC regulations that demanded written consent for telemarketing calls to wireless phones. The Supreme Court’s 2024 decision in McLaughlin Chiropractic Associates, followed by Loper Bright Enterprises, signaled a judicial pivot toward pure statutory construction, stripping agencies of deference. This shift forced lower courts to ask what Congress actually meant by “prior express consent.” In the Fifth Circuit, that question culminated in the Bradford v. Sovereign Pest Control opinion, which re‑examined consent through the lens of ordinary meaning rather than agency policy.

The Fifth Circuit concluded that oral consent—whether spoken or implied by the act of providing a phone number—satisfies the TCPA’s consent requirement. The court emphasized that the statutory phrase “express consent” at the time of enactment meant a direct, unequivocal agreement, which can be given viva voce. By treating Bradford’s provision of his cell‑phone number and his silence as affirmative consent, the panel effectively overruled the FCC’s written‑consent rule for both telemarketing and informational calls within its jurisdiction. Companies can now rely on recorded verbal agreements or simple number collection to defend against TCPA claims, provided the consent is clear and unambiguous.

Nevertheless, the ruling does not create a uniform national standard. Several states within the Fifth Circuit have enacted “mini‑TCPA” statutes that still require written consent, and other circuits may continue to follow the FCC’s stricter approach. Practitioners should therefore implement layered consent protocols—capturing both oral acknowledgment and written confirmation where feasible—and regularly audit state‑specific regulations. As courts continue to dissect consent language, businesses that adopt a cautious, multi‑jurisdictional compliance framework will be better positioned to avoid costly litigation.