The Fragmented Legal Landscape of Prior Express Consent

If your business operates in more than one state, the rules governing consent may now literally change depending on which side of a circuit court boundary your customer lives. That is the practical reality after two federal appellate decisions pulled the definition of "prior express consent" in opposite directions.

On February 25, 2026, the Fifth Circuit ruled in Bradford v. Sovereign Pest Control of TX, Inc. that the TCPA's text does not distinguish between written and oral consent, rejecting the FCC's 2012 rule (FCC 12-2) that had required prior express written consent for automated telemarketing calls to cellphones for more than a decade, according to a Holland & Knight analysis. But the court was explicit: the ruling applies only within the Fifth Circuit — Texas, Louisiana, and Mississippi — while other federal circuits may still adhere to the FCC's written consent framework, and state telemarketing statutes may independently require written consent.

Meanwhile, the FCC's 2023 one-to-one consent rule — which would have required separate consumer consent for each seller — was vacated by the Eleventh Circuit on January 24, 2025, after the court found the FCC exceeded its statutory authority. As Legal Dive reports, the rule had been scheduled to take effect January 27, 2025, before the court struck it down one day before oral arguments had even been fully digested by industry. The practical result is a patchwork map:

• In Texas, Louisiana, and Mississippi, oral consent can now satisfy the TCPA — but it must be "clear, direct and unequivocal" and carefully documented.
• Everywhere else, the FCC's written consent framework still governs, and state mini-TCPAs may add their own written requirements.
• Nationally, the one-to-one consent rule is vacated, but experts still advise treating it as a compliance best practice.

The stakes are significant. TCPA violations carry liability of up to $1,500 per call or text message, and the statute is described as one of the most litigated consumer protection laws in the country. The Ecommerce Innovation Alliance puts it plainly: businesses "should not change their opt-in practices based on a single appellate decision," and written consent remains the safest approach across all jurisdictions.

This is why CallMyCustomers treats documented consent as the baseline for every reactivation campaign, regardless of where a client's customers live. Working from lists of real customers — people who already gave you their number in the course of doing business — and keeping verifiable records of how and when consent was obtained remains, per Nelson Mullins' guidance, the most defensible position while courts continue to debate the statute's meaning.

What Counts as Valid Consent — and What Does Not

Consent isn't a checkbox you can assume — courts scrutinize exactly what a customer agreed to, when, and how. The difference between a defensible campaign and a $1,500-per-message TCPA penalty often comes down to the quality of your consent records.

The Fifth Circuit's February 2026 decision in Bradford v. Sovereign Pest Control of TX, Inc. clarified that consent can be established through conduct, not just signed forms. According to the Holland & Knight analysis, the plaintiff in that case provided his cellphone number in a service plan agreement, expressly authorized contact, and engaged with the company's prerecorded calls — scheduling inspections and renewing his plan four times. That pattern of conduct constituted valid consent.

But the court set a high bar. Companies must still demonstrate that the called party provided clear, direct and unequivocal consent — and where that consent is oral, it must be carefully documented and independently verifiable to withstand scrutiny. A vague recollection that a customer "seemed fine with it" will not survive a motion to dismiss.

What does not count as valid consent is equally important to understand:

• Assumed consent — an existing customer relationship alone does not authorize automated marketing calls or texts
• Consent that has been revoked — a Northern District of California ruling confirmed that even two calls after an opt-out request can support a TCPA claim
• Consent that lacks documentation — without records of how and when consent was obtained, even genuine consent may be indefensible in litigation
• Consent obtained for one context but used in another — outreach must remain logically and topically associated with the original interaction

This is why documentation discipline matters so much. Legal experts recommend retaining consent forms, recording when and through whom consent was obtained, and building robust terms into consent agreements, as Legal Dive reports. Clear records showing how and when consent was obtained remain one of the most important defenses in TCPA litigation.

Despite the Fifth Circuit's acceptance of oral consent, written consent remains the universally safest standard. The Ecommerce Innovation Alliance advises businesses not to change their opt-in practices based on a single appellate decision, since the ruling binds only Texas, Louisiana, and Mississippi while other circuits and state statutes may still require written consent.

For a service like CallMyCustomers, this principle shapes everything: campaigns run only from lists of real customers whose consent is verifiable, every opt-out is honored immediately, and each message is approved and documented before it goes out. When your outreach starts with a genuine, well-documented relationship, consent stops being a legal minefield and becomes what it should be — permission to reconnect.

The $1,500-Per-Message Risk: Why Documentation Is Your Best Defense

A single text message sent without proper consent can cost your business up to $1,500 in statutory damages under the TCPA — and that figure applies per call or text, not per campaign (Legal Dive). For a service business running a reactivation campaign to a few thousand past customers, the math becomes alarming fast.

The good news is that the strongest defense against TCPA litigation isn't a lawyer — it's your paperwork. As the Ecommerce Innovation Alliance puts it, clear records showing how and when consent was obtained remain one of the most important defenses in TCPA litigation. Courts scrutinize the factual basis for consent claims at the motion-to-dismiss stage, so vague assertions that "the customer gave us their number" rarely survive scrutiny.

A recent Northern District of California decision illustrates what happens when documentation and opt-out handling fall short. In Koeller v. TD Synnex Corp., decided July 7, 2026, the plaintiff alleged that two additional calls continued after an initial request to cease contact, during a January–February 2026 outreach window. The court found that asserting a number was on the Do-Not-Call Registry and requesting cessation of calls could support a TCPA claim when contact continued anyway.

The lesson for any business running outreach campaigns is straightforward: consent isn't a one-time event, and revocation must be honored immediately and logged verifiably. Holland & Knight's analysis of the Fifth Circuit's recent ruling stresses that even oral consent "should be carefully documented and independently verifiable to withstand future scrutiny."

Practical documentation standards for service businesses:

• Retain consent forms and record when, how, and through whom consent was obtained
• Log every opt-out request with a timestamp and confirmation that contact ceased
• Keep outreach logically tied to the original transaction that produced the relationship
• Include robust terms of service in any consent agreement

This is why CallMyCustomers honors opt-outs immediately and works only from lists of real customers with an existing relationship to the business — every campaign message is approved by the owner before it's sent, creating a verifiable record of what went out, when, and to whom. In a legal environment where the TCPA remains one of the most litigated consumer protection statutes in the country, that paper trail is worth more than any defense argument.

Want your reactivation outreach built on consent you can actually prove? Get a free list review and see exactly what your customer list can produce — before you spend a dollar.

Reactivating a customer costs roughly 5x less than acquiring one — and with documented consent behind every message, it's revenue you can pursue with confidence.

How CallMyCustomers Verifies Consent Before Every Campaign

CallMyCustomers builds consent verification directly into every step of the reactivation process to ensure compliance with TCPA requirements. Before any outreach begins, the team reviews and segments the customer list by recency and relationship type, confirming that all contacts are real customers with established business relationships. Every script, offer, and message is then submitted to the client for explicit approval, creating a documented record of consent for campaign content. This client sign-off step aligns with the requirement that businesses demonstrate clear, direct and unequivocal consent before initiating marketing communications, a standard emphasized across jurisdictions despite evolving interpretations of oral versus written consent under the TCPA.

As replies come in, they route seamlessly into the client’s existing booking flow, where explicit consent for the specific offer or appointment is collected at the point of conversion. Opt-out requests are honored immediately and logged with timestamps, providing verifiable evidence that consumer revocations were respected—a critical defense highlighted in cases like Koeller v. TD Synnex Corp., where continued contact after an opt-out request supported TCPA claims. By embedding these verification steps into the workflow rather than treating compliance as an add-on, CallMyCustomers helps clients navigate the fragmented legal landscape where TCPA violations can trigger liability of up to $1,500 per call or text message. This approach ensures that outreach remains logically and topically associated with the original customer relationship, reducing risk while maintaining a permission-based, relationship-first strategy.

Practical Steps to Keep Your Reactivation Campaigns Compliant

Practical Steps to Keep Your Reactivation Campaigns Compliant

Start by anchoring every campaign to documented consent from the original service interaction. Maintain written opt-in records tied to the customer’s initial engagement, as clear documentation remains one of the most important defenses in TCPA litigation, especially given the fragmented legal landscape where oral consent requires careful verification to withstand scrutiny.

Ensure every message is logically and topically related to the service that generated the consent—such as sending seasonal HVAC reminders only to customers who previously received maintenance or installation work. This aligns with guidance that telemarketing efforts should exercise an abundance of caution by staying associated with the original consent context, even after the vacatur of the FCC’s one-to-one rule.

Use jurisdiction-aware consent language: while the Fifth Circuit (Texas, Louisiana, Mississippi) permits oral express consent under the TCPA, other regions and state laws may still require written consent, making documented practices the safest baseline across all operating regions.

• Verify your partner logs every opt-out and provides cessation confirmation, as continued contact after a revocation request—like the two additional calls in the Koeller case—can support TCPA claims.
• Run a quarterly consent audit on your customer list before launching win-back or seasonal campaigns to confirm records are current and jurisdiction-appropriate.
• Document how and when consent was obtained, including the specific service interaction, to create independently verifiable records that withstand litigation scrutiny.

These steps help service businesses maintain compliance while leveraging reactivation as a reliable revenue engine, reducing exposure to liability that can reach up to $1,500 per call or text message under TCPA violations. CallMyCustomers integrates these practices into its verification process to ensure campaigns are both effective and legally sound.