Does the TCPA require written consent? What Bradford changed

The FCC’s rule still requires prior express written consent for autodialed or prerecorded telemarketing calls to mobile numbers. On 25 Feb 2026, the Fifth Circuit held that the TCPA itself only requires prior express consent, oral or written. That ruling binds courts in Louisiana, Mississippi and Texas. Everywhere else, keep collecting written consent.

The rule on the books

The statute, 47 U.S.C. 227(b)(1)(A), bans calls to mobile numbers made with an autodialer or an artificial or prerecorded voice, unless the call is for emergency purposes or made “with the prior express consent of the called party.” It says nothing about writing.

The FCC added the writing. Its rule at 47 CFR 64.1200(a)(2) requires prior express written consent for autodialed or artificial or prerecorded voice calls that include an advertisement or constitute telemarketing. Section (a)(3) asks the same for prerecorded telemarketing to residential lines.

The definition, in 64.1200(f)(9), is specific. A valid written agreement:

1. carries the signature of the person called (an electronic signature counts);
2. clearly authorizes the seller to send telemarketing calls using an autodialer or an artificial or prerecorded voice;
3. names the phone number the calls may go to;
4. tells the person they don’t have to sign as a condition of buying anything.

Informational calls, such as appointment reminders with no sales message, only ever needed prior express consent under the rule.

What the Fifth Circuit decided

Bradford v. Sovereign Pest Control started with a pest-control customer. He gave the company his mobile number on a service agreement, then received prerecorded calls asking him to schedule a “renewal inspection.” He booked the inspections and renewed his plan four times. Later he sued, arguing the calls were telemarketing and needed written consent.

The court affirmed the win for the company, and went further than the district court. Citing the Supreme Court’s McLaughlin and Loper Bright decisions, it read the statute without deferring to the FCC. Using the 1990 Black’s Law Dictionary, it found that “express consent” meant consent given “either viva voce or in writing.” Its conclusion: the statute “provides no basis” for requiring written consent for telemarketing calls but not oral consent.

So, in the court’s reading, a prerecorded call needs prior express consent whether it is telemarketing or informational. The customer had given that consent when he handed over his number and confirmed the company could call him.

Where it applies, and where it doesn’t

Question	Answer as of October 2026
Which courts must follow it?	Federal courts in the Fifth Circuit: Louisiana, Mississippi and Texas (28 U.S.C. 41)
Is 64.1200(a)(2) repealed?	No. The written-consent rule is still in the eCFR
Does it change the National Do Not Call Registry rule?	No. Calls to registered residential numbers still need a signed, written agreement under 64.1200(c)(2) unless another exemption applies
Does it change consent for AI voice calls?	Only inside the Fifth Circuit. The FCC treats AI voices as artificial voices (FCC 24-17)
Does it affect live calls by a rep?	No. Those calls never needed this consent

The ruling is about what a court will accept in a private lawsuit. A plaintiff in California or New York can still argue the FCC’s written-consent standard. Courts there are free to agree with Bradford or not. State laws can also set their own consent rules. Ask your counsel how the split applies to the states you call.

A myth worth checking: “oral consent is fine now”

A rep in Dallas runs a prerecorded follow-up campaign to 4,000 mobile numbers. The consent for 3,100 of them came from a recorded webinar sign-up call. The other 900 signed a web form with the 64.1200(f)(9) disclosure.

In a Fifth Circuit court, both groups may be covered, as long as the consent was express and covers the calls. If 600 of the 3,100 live in Ohio or Florida and one of them sues at home, the Fifth Circuit’s reading doesn’t bind that court. The FCC’s rule says written. The statute allows US$500 in damages for each violation, and up to three times that when a court finds it willful or knowing, so the gap is easy to price.

That is why most legal teams will treat Bradford as a defense to keep in reserve, not a reason to stop collecting signatures.

A consent checklist to copy

For any autodialed, prerecorded or AI voice campaign with a sales message:

1. Record the source of each consent: form, call recording, or contract, with date and time.
2. Use the (f)(9) disclosure on forms, word for word where you can: who will call, by what means, and that signing isn’t a condition of purchase.
3. Store the number consented, not just the contact. Consent follows the number.
4. Tag oral consents separately so you can exclude them from campaigns outside the Fifth Circuit.
5. Honor opt-outs within 10 business days. See our guide to TCPA consent revocation.
6. Keep reps on live calls for cold outreach. The TCPA rules for B2B cold calling cover what those calls still need.

Where AI voice agents fit

AI voice agents are where this matters most for sales teams. Because the FCC treats AI voices as artificial voices, an outbound AI call to a mobile number needs prior express consent, and prior express written consent when it is telemarketing, under the FCC’s rule. Reps make cold calls; AI agents call people who agreed to it. Our guide to AI voice agent consent rules covers the full picture.

How DialSavvy handles this

DialSavvy runs compliance checks before every call: calling hours in the contact’s time zone and your do-not-call list, with rule packs by country. DialSavvy Agents are in early access, and AI-voice consent checks are coming. Until they ship, consent records stay in your own systems. See what the compliance checks cover today.

Running a prerecorded or AI campaign across several states? Book a demo and we’ll walk through how the checks run on your list.