A recent decision from the U.S. Court of Appeals for the Fifth Circuit has sparked discussion in the marketing and compliance community. In Bradford v. Sovereign Pest Control, LLC, the court addressed whether the Telephone Consumer Protection Act (TCPA) itself requires “prior express written consent” for certain telemarketing calls and texts.

The Fifth Circuit concluded that the statute requires “prior express consent,” but does NOT explicitly require that the consent be in writing. In other words, the court determined that the TCPA’s text does not itself mandate written consent in the way Federal Communications Commission (FCC) rules have long required.

However, the decision reflects the Fifth Circuit’s interpretation of the statute, and other courts may reach different conclusions. For ecommerce brands that rely on SMS marketing, promotional outreach, and customer engagement tools, the ruling has understandably generated interest. But the practical takeaway for businesses is not that consent rules have suddenly changed nationwide. Companies should be cautious about drawing sweeping conclusions from this decision.

What the Court Actually Said

In Bradford v. Sovereign Pest Control, LLC, the Fifth Circuit analyzed the TCPA’s statutory language and concluded that the law requires “prior express consent” but does not explicitly mandate that such consent be in writing.

The court therefore declined to treat written consent as a statutory requirement in the case before it. Importantly, the decision focused on the text of the TCPA itself rather than broadly rewriting the regulatory framework governing telemarketing calls and texts.

The Fifth Circuit’s reasoning reflects a broader shift in how courts are approaching FCC interpretations of the TCPA following the Supreme Court’s decision in McLaughlin Chiropractic Associates v. McKesson Corp. That case clarified that courts reviewing TCPA claims are not always bound by prior FCC interpretations when interpreting the statute itself. As EIA has previously discussed, this development is likely to encourage more litigation testing the boundaries of TCPA rules—including issues like consent requirements.

Some commentary has framed the ruling as a major shift in TCPA compliance. In reality, the implications are more limited.

Why the Decision’s Impact May Be Narrow

First, the ruling comes from one federal appellate court. The Fifth Circuit covers Texas, Louisiana, and Mississippi, but other federal courts are not required to follow its interpretation.

Second, the FCC’s prior express written consent framework has been in place for more than a decade and continues to guide how many courts and regulators evaluate TCPA compliance.

Third, the decision does not eliminate TCPA liability. Businesses must still demonstrate that prior express consent was obtained before sending marketing calls or texts.

For these reasons, it would be risky for businesses to change their consent practices based on this single ruling.

What This Means for Ecommerce Brands

For ecommerce companies, the TCPA remains one of the most litigated consumer protection statutes in the country. SMS marketing campaigns, promotional text messages, and customer engagement tools are frequent targets of TCPA lawsuits.

Many ecommerce brands have adopted clear written consent processes, often through website opt-in forms, checkout flows, or mobile marketing platforms. These written records provide strong documentation if litigation arises.

The Fifth Circuit’s ruling does not materially change the underlying litigation risk. If anything, it highlights how uncertain and fragmented TCPA compliance can be, particularly when courts interpret the statute differently across jurisdictions.

Key Takeaways for Ecommerce Businesses

• The TCPA’s consent requirement still exists. The Fifth Circuit questioned whether written consent is required by the statute itself, but prior express consent remains mandatory for marketing calls and texts.
• The decision is geographically limited. The ruling applies within the Fifth Circuit (Texas, Louisiana, and Mississippi), and other courts may not follow its reasoning.
• Written consent remains the safest approach. Ecommerce brands should not change their opt-in practices based on a single appellate decision.
• Documentation still matters. Clear records showing how and when consent was obtained remain one of the most important defenses in TCPA litigation.
• The legal landscape may continue to evolve. Additional court decisions or FCC action could further shape how consent requirements are interpreted.

What Comes Next

The Fifth Circuit’s ruling may encourage additional litigation and potentially prompt other courts to weigh in on the scope of consent under the TCPA. Regulators may also examine whether further clarification is needed.

Until there is clearer nationwide guidance—either from additional courts, regulators, or Congress—businesses should assume that existing compliance practices remain the prudent path forward.

For ecommerce brands, the safest approach continues to be maintaining clear, well-documented written consent practices, even as courts debate the scope of the TCPA.

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Ecommerce Innovation Alliance provides members with analysis of litigation and regulatory developments affecting online commerce and digital marketing. This post is for informational purposes only and does not constitute legal advice.