If your growth motion includes outbound voice or SMS — and for most B2C operators, it does — a March 2026 Fifth Circuit ruling just changed the calculus. The court rejected the FCC’s “prior express written consent” rule for prerecorded marketing calls. For marketers, this is one of those decisions that sounds technical and is actually load-bearing.
The short version, for marketers
Since 2012, anyone running prerecorded marketing calls in the U.S. has had to capture a signed written consent before the call could legally land. The Fifth Circuit said the FCC overstepped when it added that “written” requirement, because the TCPA itself only says “prior express consent.” After Loper Bright stripped courts of their old habit of deferring to agencies, the rule became vulnerable, and the Fifth Circuit pulled the trigger.
In plain English: in the Fifth Circuit (Texas, Louisiana, Mississippi), the law is now closer to the plain text of the statute. Outside it, the FCC’s old rule still applies — for now.
Where this hits your funnel
Most growth teams use written consent as the universal default because (a) it is simpler than running region-specific consent flows and (b) it is the most defensible. That should not change overnight. What does change is risk allocation. If you are sued in a Fifth Circuit court, you have a meaningfully stronger argument that an opt-in checkbox you forgot to capture isn’t fatal. If you are sued anywhere else, the old rule still rules.
Practically, this means three things: keep your written-consent capture in production; expect plaintiff firms to forum-shop into pre-ruling circuits more aggressively; and assume the FCC will respond, probably within the next 12 months, with a new rule or new enforcement priorities.
Reviewing your stack this quarter
This is a good moment to audit consent capture in your tag manager, your email service provider, and your CRM. The questions to answer: Are timestamps captured? Is the disclosure language at the point of opt-in current? Are your DNC scrubs running on every list, every send? Is your suppression file actually being honored across channels?
Outbound is still one of the highest-ROI channels in B2C and B2B — but only if your dial list is clean. TCPALitigatorList.com is the de-facto industry list of known TCPA plaintiffs and professional-litigant phone numbers, updated continuously. Marketing and growth teams that scrub their cadences against it before a launch dramatically reduce the odds that a campaign turns into a class action. If you are running outreach at any scale, it belongs in your pre-flight checklist.
The takeaway
One court has cracked the door on consent. Plaintiffs’ firms have not slowed down — if anything, the volume of TCPA suits is climbing. Treat the Fifth Circuit decision as a defensive tool, not a green light. Your outbound program is only as compliant as the weakest link in your consent and scrub stack.