Fifth Circuit TCPA Ruling: Consent Does Not Require Written Consent

A recent Fifth Circuit (Fifth Circuit) TCPA decision may provide helpful arguments in a common risk area for companies that communicate with customers by phone. In Bradford v. Sovereign Pest Control of Texas, the court questioned the regulations promulgated by the Federal Communications Commission (FCC) that interpreted the statutory requirement for “prior express consent” to receive certain prerecorded calls to mean “prior express written consent”. 

For mortgage lenders and servicers communicating with borrowers through automated calls, appointment reminders, and servicing outreach, the ruling is worth noting.

The Case in Brief

The plaintiff contracted with a pest control company and provided his cell phone number so the company could contact him regarding service. During the relationship, the company placed prerecorded calls to schedule renewal inspections. The customer later sued, alleging the calls violated the Telephone Consumer Protection Act (TCPA) because he had not provided prior express written consent for the particular calls.

Both the district court and the Fifth Circuit rejected that argument.

The appellate court held that the TCPA itself requires only “prior express consent,” which may be oral or written, and that the statute does not impose a blanket written-consent requirement for prerecorded calls.

Because the customer had provided his phone number during the service agreement and acknowledged that he expected the company to contact him, the court concluded he had given the required consent.

Key Takeaways for Mortgage Companies?

The Fifth Circuit’s ruling reinforces several practical points, at least in the Fifth Circuit, including:

1.  Providing a phone number may constitute consent.  When customers voluntarily provide their phone number in connection with a business relationship, courts may view that as express consent to be contacted.

2.   Written consent may not be required under the TCPA statute itself.  The court emphasized that Congress required only “prior express consent,” rejecting the argument that written consent is necessary in all cases.

3.  Ongoing business relationships matter.  The court noted that the ongoing service relationship, and the customer’s repeated renewals, supported the finding of consent.

Why Should Mortgage Executives Be Careful?

While the decision may provide some help in the Fifth Circuit, other circuits have not yet adopted this approach.  And the decision does not eliminate TCPA exposure.

Mortgage companies should continue to evaluate:

• How borrower phone numbers are collected

• What disclosures accompany those collections

• Whether consent is documented appropriately

• How automated communications are structured

TCPA litigation remains active, and plaintiff lawyers continue to target industries that rely heavily on customer outreach.

What’s the Bottom Line?

The Fifth Circuit’s TCPA decision may underscore a common-sense principle: when customers provide their phone number as part of a business relationship, they generally expect to be contacted.  But lenders should still ensure their consent practices are well-documented and defensible and other jurisdictions may interpret the language differently.

For mortgage companies managing borrower communications at scale, small compliance decisions can quickly turn into class-action exposure.

If you have questions about TCPA compliance, borrower communications, or litigation risk, contact Troy Garris at troy@garrishorn.com.