Is a Customer Giving You a Phone Number Enough to Call or Text Them? Maybe, at least according to the Fifth Circuit.

by: Brian Schaller

The United States Court of Appeals for the Fifth Circuit recently held that “‘[P]rior express consent’ encompasses both oral and written consent for both telemarketing and informational calls” under the Telephone Consumer Protection Act of 1991 (“TCPA”). This interpretation adopts a broader view of the consent required to call or text consumers and rejects the higher consent standard imposed by the Federal Communications Commission (“FCC”). For those of us advising clients on calling and texting, this is a positive development, although we believe its practical impact is quite limited.

While this holding[1] may seem to be a win for businesses who call or text solely within the states of Louisiana, Mississippi, and Texas (the Fifth Circuit’s jurisdiction), the news may not be as good for those businesses as it seems. It is common for businesses to text or call numbers in all fifty states and this ruling highlights a high level of uncertainty in this space. As we explain in more detail below, whether a consumer merely giving a phone number to a business is enough consent under the TCPA is highly fact specific. Even scenarios that appear low risk may not deter an aggressive plaintiffs’ bar that has continued to pursue TCPA claims through evolving and sometimes conflicting court interpretations over the years.

In the case before the Fifth Circuit, a consumer gave his mobile phone number to a pest control business when he entered into a service-plan agreement so that the business could get in touch with him. Apparently, the consumer thought the business would call him for appointment reminders, but did not limit the calls to appointment reminders when he gave the number. The business then allegedly called him with prerecorded messages, including regarding renewal inspection. He didn’t object to calls, didn’t opt out, and continued to renew contracts. The Court viewed these facts as evidence of prior express consent. 

Under the FCC’s interpretation of the TCPA and its implementing rules, however, this level of consent would generally not be sufficient for a business to lawfully make telemarketing calls or texts using an autodialer or an artificial or prerecorded voice.[2] Instead, the FCC rules require “prior express written consent” in this situation.

The Fifth Circuit rejected that requirement, reasoning that the TCPA statute itself refers only to “prior express consent,” and that the FCC cannot impose an additional written-consent requirement that is not found in the statute. In reaching that conclusion, the court relied on relatively recent Supreme Court decisions instructing courts to interpret statutes without deference to an agency’s interpretation.

As background, a significant amount of TCPA litigation arises from allegations that marketing calls or texts were made using an autodialer or artificial or prerecorded voice without the called party’s prior express written consent. The litigation often hinges on whether an autodialer or artificial/ prerecorded voice is used or whether the consent was sufficient. The TCPA provides for $500 - $1,500 per call/text in statutory damages, which creates strong incentives for the plaintiffs’ bar to pursue class actions where the potential damages can reach many millions of dollars. We have seen the plaintiffs’ bar relying on legal uncertainty or shifting their focus to jurisdictions where interpretation of the TCPA is favorable to plaintiffs (including bringing claims under state “mini-TCPA statutes).

The key takeaway for businesses is that even a favorable ruling on the level of consent required within the Fifth Circuit does not mean the TCPA is no longer a risk, even within that jurisdiction. Instead, it should be used as a reminder to evaluate calling and texting programs, including how consent is obtained before calls or texts are made, where the calls or texts originate and are received, and the type of technology used to place those calls or send those messages. 

[1] Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379, 2026 (5th Cir. Feb. 25, 2026)

[2] The Court didn’t address whether the calls were telemarketing, stating, for example that “Whether [defendant]’s pre-recorded calls to [plaintiff] qualify as telemarketing or informational calls, those calls required only prior express consent from [plaintiff].”

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.