Key Takeaways
- The TCPA requires prior express consent, not necessarily written consent
- The FCC’s written consent rule has been rejected within the Fifth Circuit
- Oral consent may be valid if it can be proven
- Compliance now depends heavily on jurisdiction
TCPA Update: Prior Express Consent Now Redefined
There’s a major shift happening in how the TCPA is being interpreted, and it’s something every business making calls or sending texts needs to understand. A recent decision by the United States Court of Appeals for the Fifth Circuit concluded that the TCPA only requires “prior express consent”. It does not require that consent to be written.
That changes a lot.
For years, businesses operated under the assumption that written consent was mandatory. Now, at least in certain states, that assumption is no longer true.
Explore More: Why TCPA Compliance Matters for AI Calling Systems
The Case Behind the Decision
This ruling comes on February 25, 2026 from the case Bradford v. Sovereign Pest Control, where the court looked closely at what the TCPA actually says. And what they found was simple.
The law itself never says consent has to be “written.” That requirement came from regulatory interpretation by the FCC, not from the statute.
Rejection of the FCC’s Written Consent Rule
The court made one thing very clear. Regulatory agencies cannot add requirements that are not explicitly written in the law.
The Federal Communications Commission had enforced a prior express written consent standard for years. But according to the Fifth Circuit, that standard goes beyond what Congress actually stated. So within this jurisdiction, that extra layer is gone.
A Bigger Legal Shift Behind the Scenes
This decision didn’t happen in isolation. It follows a broader legal shift after the Supreme Court ruling in Loper Bright Enterprises v. Raimondo.
That case reduced how much courts rely on agency interpretations.
Now courts are going back to the actual text of the law instead of automatically following regulatory guidance. And that’s exactly what happened here.
What Counts as Consent Now
So what does “prior express consent” actually mean now?
It can include things like:
- Voluntarily providing a phone number
- Agreeing to be contacted
- Not placing restrictions on communication
And most importantly, consent does not have to be written. It can be oral, as long as it can be clearly demonstrated. That opens the door to things like voice-based opt-ins and conversational consent.
Where the New Ruling Applies?
This ruling only applies in the Fifth Circuit, which includes:
- Texas
- Louisiana
- Mississippi
Outside these states, courts may still follow FCC guidance requiring written consent. So now you don’t have one rule. You have multiple.
Upsides and Downsides of New Ruling
If you’re in telemarketing, lead generation, or AI outbound calling, this creates both opportunity and risk. On one side, there’s more flexibility. You can explore voice-based consent, conversational opt-ins, and new ways of capturing permission. On the other side, compliance just got more complex. Because what works in one state may not work in another.
Best Practices for AI Calling Agencies
Even with this change, the safest approach hasn’t really changed.
You should still:
- Keep written consent wherever possible
- Record and store verbal consent properly
- Maintain clear audit trails of consent
- Follow the strictest standard if you operate across multiple states
Because flexibility does not mean safety.
Conclusion
This decision marks a turning point in how TCPA is enforced. Courts are now focusing more on the actual wording of the law rather than regulatory interpretation.
But until there is a nationwide standard, businesses are operating in a fragmented environment. And in that kind of environment, the smartest move is simple: Stay compliant at the highest level, not the lowest.
FAQs about TCPA Reset
1. Where is the New Ruling based on TCPA Reset Applies?
This ruling only applies in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi Outside these states, courts may still follow FCC guidance.
2. What does “prior express consent” actually mean now?
Based on the new ruling, the prior express consent does not have to be written. It can be oral, as long as it can be clearly demonstrated.
3. What are the upsides and downsides of TCPA reset?
On one side, there’s more flexibility. You can explore voice-based consent, conversational opt-ins, and new ways of capturing permission. On the other side, compliance just got more complex. Because what works in one state may not work in another.
