TCPA Reset: Fifth Circuit Rejects Prior Express Written Consent Rule (Holland & Knight, 2026)

On February 25, 2026, the Fifth Circuit ruled in Bradford v. Sovereign Pest Control of Texas that the TCPA's statutory text requires only "prior express consent" — which may be given orally or in writing — not the FCC's 2012 regulatory gloss requiring "prior express written consent" (47 C.F.R. § 64.1200(f)(9)) for autodialed/prerecorded telemarketing calls to wireless numbers. The court held the FCC's PEWC rule exceeded the agency's statutory authority, applying the reasoning of Loper Bright Enterprises v. Raimondo (2024) to decline deference to the FCC's interpretation.

Scope and limits. The ruling is binding within the Fifth Circuit (Texas, Louisiana, Mississippi) and creates a live circuit split with other circuits that have applied the PEWC rule. Independent commentary (Inside Global Tech) characterizes the decision as "effectively nullifying" the FCC requirement in practice while noting its formal reach is limited pending further litigation or FCC/Congressional action.

Relevance to constraint.tcpa-prior-express-written-consent-sms. This node currently states PEWC as a settled federal requirement without qualification. The Fifth Circuit holding introduces material jurisdictional uncertainty that should be reflected — organizations should continue treating PEWC as the safe-harbor standard nationwide (litigation risk and enforcement posture outside the Fifth Circuit are unchanged) while noting the emerging circuit split for legal/compliance teams monitoring exposure.