Fifth Circuit Accepts Oral Consent for Prerecorded Calls

On February 25, 2026, the Fifth Circuit issued a decision giving businesses a statutory argument that oral consent can defeat a TCPA claim involving prerecorded calls, even when the claimant describes them as telemarketing. The decision is useful defense authority, but it doesn’t establish permission where none existed. A business still needs to prove the consent it relies on and consider which court will decide the dispute.

What does Bradford say about written consent?

In Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379, the Fifth Circuit affirmed summary judgment for the defendant. The court stated: “The statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent.” Our post on proving consent at summary judgment covers the evidence that carries that motion.

The opinion concluded: “We thus hold that Bradford provided prior express consent.” This was a ruling on the record before the court, without establishing a rule that every customer relationship authorizes every recorded call.

When assessing a demand, I would separate the legal question about the form consent must take from the factual question of whether the business has evidence that the customer authorized the challenged calls. A company can have a strong argument that a signature wasn’t necessary and still face a factual dispute over what the customer actually authorized.

Why did the customer relationship matter?

According to the opinion’s account of the service agreement, the customer supplied his cellphone number so the company could contact him if it “needed to get in contact” with him. The court considered that permission against the service relationship and the challenged calls.

A supplied telephone number can be useful evidence, but its context matters. I would want to know why the business requested it, what the customer was told, and whether the company retained the original record. Because a number collected to arrange a service visit may present different questions from a number acquired from an unrelated source, treating both as a generic customer number makes the defense harder to evaluate.

Check later communications, too. A customer may clarify or limit permission after entering the service agreement, so a record of the original agreement doesn’t necessarily resolve questions about calls made after the business received that later instruction. Before making a factual assertion in a response letter, counsel needs the chronology, including any request to stop contact.

That chronology can also help a business explain why a complaint’s characterization of a call is incomplete. A recording and the related service record may reveal the purpose of the message more clearly than a label assigned by either side. I wouldn’t rely on the campaign name in a vendor dashboard when the actual recording is available, particularly if the vendor uses one label for messages serving different purposes or if the label changed after the campaign was sent.

How does the decision relate to the FCC regulation?

47 U.S.C. § 227(b)(1)(A) uses “prior express consent” in the relevant cellphone restriction. Prerecorded calls use audio recorded before the call rather than a person speaking live. That is a separate ground of potential coverage from the statute’s automatic-telephone-dialing-system language.

The current FCC regulation continues to contain a written-consent requirement for covered telemarketing and advertising calls, subject to its exceptions. Written consent under that regulation involves a qualifying signed authorization, and an electronic signature can satisfy the signature requirement. The existence of the regulation and the judicial argument about the statute must both be addressed.

The Fifth Circuit is a federal appellate court whose decisions bind federal district courts within its circuit. California’s federal district courts are within the Ninth Circuit. For a California case, I’d present Bradford as authority to evaluate and argue, while checking the law controlling the particular court. Describing it as a nationwide repeal of the regulation would overstate the decision.

An existing written-consent process may provide useful evidence even where counsel has a defense that no writing was legally necessary, and removing that process can make proof harder without improving the company’s litigation position. Keeping clear records is good practice. There’s no need to discard evidence because a legal argument may permit a different form of consent.

Which records make an oral-consent defense usable?

An oral-consent defense needs more than someone’s present recollection that customers usually agree. I would look for the specific conversation and contemporaneous notes, then examine how the company’s ordinary recordkeeping process connects those materials to the customer whose permission is now disputed in the lawsuit. The evidence should connect the permission to the person and the challenged number, without assuming that a standard script proves what was actually said.

1. Preserve the relevant call and text logs, platform data, service agreements, and consent records. Include any recording of the consent conversation in the litigation hold when a claim arrives.
2. Pull dated opt-out requests and internal do-not-call entries, then compare them with the challenged calls.
3. Retrieve National Do Not Call Registry scrub records and the list-version dates. That Registry is the federal list of subscribers requesting limits on telemarketing calls.
4. Assemble vendor contracts, calling scripts, and the actual prerecorded or AI-voice messages. Keep the service records that explain each call’s purpose.
5. Have counsel review the demand before the business responds, contacts the claimant, or proposes settlement terms.

The firm’s TCPA defense lawyers page summarizes how claims involving prerecorded service calls and telemarketing calls are defended.

Evaluating your company’s consent defense

If your business faces a prerecorded-call claim, a missing signature shouldn’t end the defense analysis. The content and scope of the permission, the evidence supporting it, and the controlling law all deserve review.

Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded service calls and telemarketing calls. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379 (5th Cir. Feb. 25, 2026); 47 U.S.C. § 227; 47 C.F.R. § 64.1200.

This post is general information about the Telephone Consumer Protection Act and related laws as of February 25, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.