The Fifth Circuit Says You Can’t Write “Written” into the TCPA - The National Law Review
The Fifth Circuit ruled that the TCPA's requirement for prior express written consent cannot be expanded by the FCC to include oral consent obtained via a recorded call, meaning that for certain types of calls (e.g., telemarketing using an autodialer or prerecorded voice), written consent is still required as per the statute. This decision limits the FCC's ability to interpret 'written' broadly.
Aforeworn detected this change in the Telemarketing & TCPA Compliance space on July 7, 2026 and published this briefing so affected operators are forewarned rather than caught off guard. It is rated High urgency. Contact centers, lead-gen/affiliates, SMS marketers, debt/insurance dialers that rely on oral consent for TCPA-regulated calls should confirm how it applies to their specific situation before acting. There is a time constraint attached: Immediately, as the ruling is effective now within the Fifth Circuit (Louisiana, Mississippi, Texas). For other circuits, monitor for potential nationwide impact if the FCC appeals or other courts follow.. Acting after that point can mean penalties, a lapsed licence, or lost eligibility — exactly the kind of surprise Aforeworn exists to prevent. Aforeworn monitors Telemarketing & TCPA Compliance continuously and turns every detected change into a plain-English briefing like this one, so you always know first. Forewarned is forearmed.
What changed
The Fifth Circuit invalidated the FCC's 2015 order that allowed oral consent (recorded) to satisfy the 'prior express written consent' requirement for autodialed/prerecorded telemarketing calls. Now, written consent must be obtained in a signed writing (electronic or paper) as originally required by the TCPA.
Who it affects
Contact centers, lead-gen/affiliates, SMS marketers, debt/insurance dialers that rely on oral consent for TCPA-regulated calls
What you must do
Review and update consent collection processes to ensure all telemarketing calls subject to the TCPA's written consent requirement (autodialed or prerecorded) obtain a signed written agreement, not just oral consent. Remove any reliance on recorded oral consent for such calls.
Deadline
Immediately, as the ruling is effective now within the Fifth Circuit (Louisiana, Mississippi, Texas). For other circuits, monitor for potential nationwide impact if the FCC appeals or other courts follow.
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- WRITTEN CONSENT?: New Fifth Circuit Decision Says Congress Never Required It in the First Place! - TCPAWorld
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