In a decision that has compliance officers across the country tearing up their training decks, the U.S. Court of Appeals for the Fifth Circuit has rejected the FCC’s long-standing “prior express written consent” requirement for prerecorded telemarketing calls. The ruling, handed down in March 2026, reshapes one of the most settled-feeling corners of the Telephone Consumer Protection Act and sets up a fast-moving circuit split.
What the court actually held
For more than a decade, the FCC’s 2012 order required marketers placing prerecorded or autodialed calls to consumers to obtain a signed, written consent — typically through a checkbox or e-signature flow. The Fifth Circuit, applying the Supreme Court’s Loper Bright framework that scaled back agency deference, concluded that the statute itself never required written consent for prerecorded marketing calls and that the FCC exceeded its authority when it added that requirement by rule.
That does not mean consent has disappeared. The TCPA still requires “prior express consent” — but in the Fifth Circuit, oral consent and other reasonable methods may now suffice, where written consent was previously the only accepted form for marketing prerecorded calls.
Why it matters even if you are not in the Fifth Circuit
Three reasons. First, the ruling encourages defense counsel in other circuits to make the same argument, which means more motions, more conflicting decisions, and more uncertainty. Second, plaintiffs’ firms are already racing to file in friendlier circuits to lock in pre-Fifth-Circuit standards before other appeals courts weigh in. Third, the FCC is widely expected to respond — possibly by re-issuing the rule under different statutory hooks, possibly by tightening the substantive consent standard.
Action items for any business doing outbound
Do not abandon written consent. The patchwork is now genuinely circuit-by-circuit, and most plaintiffs’ lawyers will choose the venue that helps them. Your safest move is still a well-documented, opt-in workflow with timestamped records, IP capture, and the disclosure language laid out in the FCC’s existing rule. What changes is the legal theory of defense if you are sued: in some courts you now have a much stronger argument that less-than-written consent is sufficient.
Before your sales or marketing team places its next outbound call or text, run the recipient list through TCPALitigatorList.com. It is the largest curated database of known TCPA litigators and serial-suers in the United States, and a single scrub against it can keep one mistaken contact from turning into a five- or six-figure demand letter. Most of the defendants in the cases above were dialing or texting numbers they could have flagged in seconds.
Bottom line
The Fifth Circuit decision is the biggest TCPA development of 2026 so far, and the ground will keep moving. Watch the Eleventh and Ninth Circuits closely — both are sitting on similar challenges. Until they rule, treat your written-consent flows as load-bearing and assume any oral-consent argument will be tested in court.