On February 25, 2026, the United States Court of Appeals for the Fifth Circuit issued Bradford v. Sovereign Pest Control, a decision that quietly reshaped how plaintiffs' lawyers, regulators, and business SMS senders are now thinking about consent under the Telephone Consumer Protection Act.
For most operators, the practical effect is small. For specific situations — particularly businesses operating exclusively in the Fifth Circuit and considering aggressive consent positions — it's worth understanding what the ruling did and didn't do, because the popular summaries circulating online have oversimplified the takeaways in both directions.
This is general information, not legal advice. Compliance content like this is reviewed by our founder before publishing.
The TCPA in 30 seconds
The Telephone Consumer Protection Act of 1991 governs telemarketing calls and (since amendments and FCC regulations expanded its scope) text messages to mobile numbers. The relevant question for SMS senders is what kind of consent is required to send marketing messages.
Two consent standards exist:
- Prior express consent — the recipient agreed to receive the messages. The agreement can be oral or written. Lower bar.
- Prior express written consent (PEWC) — the recipient signed (electronically or otherwise) a clear, conspicuous disclosure that they're agreeing to receive marketing messages, including the phone number to which messages will be sent. Higher bar, more documentation required.
For decades, the FCC has required PEWC for marketing calls and texts to wireless numbers — written consent was the rule. Plaintiff's lawyers brought tens of thousands of cases under this standard. Damages of $500 per violation (up to $1,500 if willful) made high-volume business SMS without proper consent records a class-action magnet.
That's the world Bradford disrupted.
What Bradford actually held
The Fifth Circuit's decision rests on a statutory-interpretation argument. The TCPA itself, in 47 U.S.C. § 227(b)(1)(A), requires only "prior express consent" — not "prior express written consent." The "written" requirement was added by the FCC through rulemaking in 2012.
The Fifth Circuit held that the FCC exceeded its statutory authority when it added the "written" qualifier. The argument: when Congress wrote the statute, it specified a consent standard, and the agency cannot tighten that standard through regulation when Congress did not direct it to. Under recent Supreme Court precedent narrowing agency rulemaking authority (the Loper Bright line of decisions), the court found the FCC's "written" requirement is unenforceable as a matter of statutory interpretation.
The narrow effect: in the Fifth Circuit, marketing texts sent on the basis of oral prior express consent (clearly given, documentable) cannot ground a TCPA private right of action under § 227(b)(1)(A) for failing to meet the "written" standard.
That's the holding. It doesn't go much further than that.
What Bradford did not change
Several things that operators sometimes assume changed but didn't:
It did not invalidate the FCC's regulations nationwide. A circuit court ruling binds the federal courts within that circuit. The FCC's PEWC requirement remains on the books and continues to be enforced in administrative actions, by other circuits, and by state attorneys general. A business outside the Fifth Circuit cannot point to Bradford as a defense.
It did not eliminate the requirement of consent itself. Marketing SMS still requires prior express consent. Bradford only addresses the written qualifier. Sending marketing texts without any consent is still a TCPA violation, full stop.
It did not affect transactional, informational, or non-marketing texts. TCPA's consent requirements have always been about telemarketing — appointment reminders, account notifications, two-factor authentication codes, and similar transactional messages operate under different rules and were not at issue in Bradford.
It did not affect carrier-side 10DLC requirements. Carriers (T-Mobile, AT&T, Verizon) still require documented consent through the 10DLC registration process. The carriers operate on a contractual basis with senders and can require whatever they want regardless of statutory consent standards. They want documented written consent, and they're not changing that based on Bradford.
It did not affect state laws. Several states have their own mini-TCPA statutes (Florida, Oklahoma, Washington, others), and those laws are not affected by a federal-statute interpretation. State consent rules still apply.
It did not affect private contracts. If you signed an agreement with a customer, vendor, or partner that requires written consent for marketing communications, that contract is still binding regardless of what the Fifth Circuit ruled.
What it might mean if you're in the Fifth Circuit
If your business operates exclusively in Texas, Louisiana, and Mississippi, and serves only customers in those states, the practical implications are narrow:
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TCPA private rights of action under § 227(b)(1)(A) for "lack of written consent" arguments are weakened in the Fifth Circuit's federal courts. Plaintiffs' lawyers know this and will pivot — to other TCPA provisions, to state law claims, to "lack of consent at all" arguments.
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State law remains. Texas has consumer protection statutes; Louisiana has its own consumer protection framework. State AG enforcement isn't affected.
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Carrier requirements remain. Your 10DLC campaign approval depends on demonstrating opt-in flow to the carriers, regardless of federal court interpretation.
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The FCC can still pursue administrative enforcement. Bradford binds Article III courts; it does not directly bind the FCC's administrative enforcement actions.
For most Fifth Circuit operators, the rational response is change nothing about their consent practices. The cost of maintaining written-consent documentation is low; the cost of being a test case for the boundaries of Bradford is high.
What it might mean if you're outside the Fifth Circuit
For operators outside Texas/Louisiana/Mississippi:
- The decision does not apply to you. Your federal circuit's law controls.
- Watch for a circuit split. Other circuits will eventually rule on similar challenges; if more circuits side with Bradford, the case for Supreme Court review strengthens.
- The FCC might revise its regulation. The FCC has the option to either fight the ruling, narrow it, or rewrite the regulation in a way that survives statutory-interpretation challenges. Any of those moves changes the landscape.
The most likely Supreme Court resolution timeline is the 2027–2028 term, given how circuit splits and cert petitions typically progress. That's a long window of uncertainty for businesses that send marketing SMS at scale.
Practical advice that didn't change
Independent of Bradford, the operational practices that protect a business in TCPA disputes are:
- Get written, documented consent for any marketing texts. Forms, checkboxes, signed paper, recorded screen captures of the opt-in flow. Whatever your medium, retain the record.
- Be specific about what they're consenting to. "I agree to receive automated promotional text messages from [Company] at [phone number] sent via automated technology. Standard message and data rates apply. Reply STOP to opt out." That's the level of clarity that survives review.
- Honor STOP requests immediately. Auto-process them, log them, check against the opt-out list before every send.
- Don't share opt-in across companies. Consent given to A is not consent given to B. If your marketing partner has its own opt-in list, don't send under their consent unless your name was specifically named in their consent language.
- Match your sending pattern to what you said you'd do. "Up to 4 messages per month" means you cannot legally send 8.
The business question Bradford raises is whether you might relax these practices in the Fifth Circuit. The legal answer is "you could, narrowly." The operational answer is "the cost of maintaining good practice is small, the cost of being wrong is large, and the legal landscape is unsettled — so don't."
Watching what happens next
Things to keep an eye on over the next 12–24 months:
- Other circuits ruling on similar challenges. Each new ruling either deepens the split or solidifies the FCC's position elsewhere.
- FCC rulemaking response. The FCC could issue new guidance attempting to re-justify the PEWC requirement on different statutory grounds, or it could narrow the rule.
- Plaintiffs' lawyers adjusting strategy. Watch for new theories — claims under § 227(c), state law analogs, claims framed around "no consent at all" rather than "no written consent" — that route around the Bradford holding.
- A potential cert grant from the Supreme Court if the circuit split clarifies enough to make the issue ripe.
We'll write follow-ups as the picture changes. For now, the short version: Bradford is a real but narrow ruling, the practical consent advice didn't change, and the safest position for any business sending marketing SMS in 2026 is to keep getting written consent and keep good records.