The Fifth Circuit dropped a bomb recently that has set off shockwaves through out the country for TCPA purposes: prerecorded telemarketing calls, the court held, do not require prior express written consent under the TCPA. Oral consent is enough. The ruling (Bradford v. Sovereign Pest Control) is a direct shot at four decades of FCC regulations.
It's the biggest TCPA decision in a while. And for almost all of you, the right move is to do exactly nothing differently.
The TCPA statute itself requires only "prior express consent" for prerecorded calls. The "written" requirement for telemarketing calls comes from an FCC regulation, not the statute.
Post-Loper Bright, courts no longer defer to agencies when interpreting statutes. The Fifth Circuit started with the text Congress wrote, found no written-consent requirement there, and concluded the FCC exceeded its authority by adding one. Bradford had handed over his phone number on a service agreement and renewed the plan four times. That was enough.
Translation: in Texas, Louisiana, and Mississippi, oral consent can support a prerecorded telemarketing call.
Here's the thing. The noise around this case is going to be loud. Plaintiff attorneys will test the edges. Other circuits will weigh in. We now have a circuit split brewing on top of the one we already have on "calls vs. texts".
None of that changes your operational reality:
Geography. The ruling applies in three states. You're marketing nationally. The Second, Ninth, and other circuits have not spoken. Until they do, the FCC regulation remains enforceable everywhere else.
State law. Florida, Oklahoma, Washington, Maryland, and the rest of the mini-TCPA states have their own written consent regimes that don't care what the Fifth Circuit thinks about federal preemption.
The FCC regulation still exists. The Fifth Circuit didn't vacate it. Until the agency revises the rule or the Supreme Court steps in, enforcement risk is real.
Your documentation burden hasn't changed. If you get sued, "he gave me his number on a form" is a much harder story to tell a jury than a timestamped TCPA disclosure with a checkbox and an IP address. Written consent isn't just a legal requirement. It's evidence.
Watch the split develop. Do not tear up your consent flows. Do not tell your compliance team the written requirement is dead. Keep collecting prior express written consent that meets the existing 14-element framework, because that consent is valid everywhere, under every regime, today and after the dust settles.
The insurance agencies who will get hurt here are the ones who read the headline and moved too fast. The insurance agencies that will get hurt are the ones whose lead providers moved too fast.
John Henson is the founder of Henson Legal, PLLC, a compliance-focused law firm in Birmingham, Alabama.