Current Month (February 2026)
Fifth Circuit Strikes Down Written Consent Requirement for Robocalls
By Alan S. Wernick, Esq., Wernick & Associates, LTD.
The Telephone Consumer Protection Act of 1991 (“TCPA”) became effective in December 1992. It imposed restrictions on the use of automated telephone equipment and prerecorded or artificial voice messages, including restrictions commonly associated with robocalls. Robocalls can be annoying and take time to address, as well as potentially cost the recipient money when recipient’s phone service charges for each received call. However, not all robocalls are in violation of the TCPA. In fact, there is presently a divergence in interpretation among the various federal circuit courts of appeals as to whether prior express written consent is necessary for robocalls.
In the recent case Bradford v. Sovereign Pest Control, the U.S. Court of Appeals for the Fifth Circuit (2026 U.S. App. LEXIS 5614, February 25, 2026) affirmed a U.S. District Court for the Southern District of Texas decision granting defendant’s motion for summary judgment and held that prior express written consent was not required by the party initiating the robocall(s).
In Bradford the plaintiff had entered into a service agreement with defendant (a pest control company), and during the term of the agreement, and four renewals of the agreement, defendant placed multiple prerecorded calls to plaintiff seeking to schedule “renewal inspections.” Plaintiff filed a putative class action lawsuit against defendant under the TCPA (47 U.S.C. §227(b)(3)) alleging that defendant had violated the TCPA “by sending him ‘unsolicited prerecorded calls . . . for years’ because [defendant] did not obtain his ‘prior express written consent’ for the renewal-inspection calls.”
The Fifth Circuit agreed with the district court that plaintiff gave prior express consent when he provided his cell phone number to defendant when entering into the service plan agreement with defendant. The Court noted that plaintiff did not limit the calls when he provided his cell phone number to defendant, and he never objected to defendant’s calls or asked the company not to call him.
In its analysis, the Court stated:
The FCC has thus distinguished between telemarketing calls and purely non-telemarketing calls, which the Commission has dubbed “informational calls.” In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1831, 1841, 1868 (Feb. 15, 2012) [hereinafter Implementing the TCPA]; see id. at 1838, 1841 (giving examples of “informational calls”); see also 47 C.F.R. § 64.1200(a)(2). The Commission requires “prior express written consent” for pre-recorded telemarketing calls to wireless numbers, but not for “informational calls,” for which it “maintain[s] flexibility in the form of consent needed.” Implementing the TCPA, 27 FCC Rcd. at 1831 (emphasis added), 1841, 1869.
However, the Court went on to interpret the statute itself and held that “contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has ‘the prior express consent of the called party.’”
The bottom line is that an analysis of potential claims under the TCPA must, of course, consider the underlying facts of the claim, and the applicable law. Since there presently exists a split among the various federal circuit courts of appeals on this issue of consent, businesses engaging in telemarketing calls or informational calls, should proactively consider obtaining prior express written consent (“blue ink” or digital, if appropriate) before making robocalls. Thus, until the U.S. Supreme Court or Congress provides clarification, businesses and counsel will need to proceed with attention and care in their TCPA compliance.
© 2026 Alan S. Wernick
