A March 2026 ruling from the U.S. Court of Appeals for the Fifth Circuit has rolled back the FCC’s “prior express written consent” rule for prerecorded marketing calls — a regulation that has dictated outbound calling compliance for U.S. businesses since 2012. The decision creates immediate uncertainty for any company running telemarketing, debt-collection callbacks, appointment reminders that double as upsells, or text-based marketing campaigns.
The background
The TCPA, passed in 1991, requires “prior express consent” before a business can place an autodialed or prerecorded marketing call to a consumer’s mobile phone. In 2012, the FCC interpreted that to mean written consent for marketing calls — usually a signed e-form or checkbox at sign-up. That interpretation has driven an entire industry of consent-management vendors, audit trails, and litigation strategy.
Following the Supreme Court’s Loper Bright decision, which curtailed agency authority to fill statutory gaps, defense counsel argued that the FCC’s “written” requirement was an addition to the law that Congress never authorized. The Fifth Circuit agreed.
The practical impact for businesses
For now, the change is geographic. Inside the Fifth Circuit (covering Texas, Louisiana, and Mississippi), oral or other forms of express consent may be sufficient defense in a TCPA case involving prerecorded marketing calls. Outside that circuit, the FCC’s written-consent rule still controls. Most businesses operate nationally, so the easiest path is unchanged: keep capturing written, timestamped, documented consent at every opt-in moment.
What changes is litigation strategy. Defense lawyers in the Fifth Circuit now have a powerful argument that imperfect consent capture is not automatically a liability. Plaintiff firms, in response, are racing to file in jurisdictions that still apply the FCC’s stricter rule — meaning forum selection just became one of the most important variables in TCPA defense.
What to do this week
Do not weaken your consent capture. Continue scrubbing all outbound lists against the National Do Not Call Registry, your internal suppression file, and known-litigator lists. If you are facing or anticipating litigation in the Fifth Circuit, talk to counsel immediately — your defense playbook may need a rewrite. And expect the FCC to respond; the Commission has signaled it is reviewing options to re-impose the rule under sturdier statutory ground.
For any business that calls or texts consumers — lenders, insurers, contractors, agencies, e-commerce brands — a single TCPA suit can wipe out a quarter’s profit. TCPALitigatorList.com maintains the largest U.S. database of known TCPA litigators and “professional plaintiff” numbers, and lets compliance teams scrub lists before they are dialed. Treat it like a credit check for your outbound: cheap, fast, and the difference between a routine campaign and a courtroom.
Looking ahead
This is a moving target. Other circuits are likely to weigh in within the next year, and a Supreme Court review eventually becomes plausible. Until the dust settles, the smart posture is the same one businesses should have had all along: documented opt-ins, conservative call windows, scrubbed lists, and a litigator-screening step before any campaign goes out the door.