Radley Bradford entered into a service-plan agreement with Sovereign Pest Control of Texas, Inc., providing his cell phone number on the contract so the company could contact him regarding his pest control treatment. During the term of the agreement, Sovereign Pest placed multiple pre-recorded calls to Bradford, including calls to schedule renewal inspections. Bradford subsequently renewed his service plan four times. He later filed a putative class-action lawsuit alleging that these calls violated the Telephone Consumer Protection Act of 1991 because the company failed to obtain his prior express written consent. The district court granted summary judgment for Sovereign Pest, ruling that the calls were not telemarketing and that Bradford had provided prior express consent. Bradford appealed, arguing that the calls constituted telemarketing requiring written consent and that providing a phone number constituted only implicit consent.
Chief Judge Elrod, writing for the panel, analyzed the statutory text of the TCPA and the relevant FCC regulations. The court noted that while the FCC regulations distinguish between telemarketing calls, which require prior express written consent, and informational calls, which require only prior express consent, the TCPA statute itself does not contain this distinction. The statute prohibits pre-recorded calls to wireless numbers absent 'the prior express consent of the called party.' The court interpreted 'express consent' according to its ordinary meaning, citing Black's Law Dictionary to define it as consent that is 'directly given, either viva voce or in writing.' The court held that Congress permitted either written or oral consent for any auto-dialed or pre-recorded call. Consequently, whether the calls were classified as telemarketing or informational, the statute required only express consent. The court found that Bradford provided such consent by voluntarily providing his cell phone number in the service agreement for the purpose of being contacted. The court further noted that Bradford's continued renewal of the service plan four times supported the conclusion that his consent encompassed calls related to renewal inspections. The court rejected Bradford's argument that providing a phone number constituted only implicit consent, stating that his actions and statements demonstrated direct, unequivocal consent.
The decision affirms that providing a phone number in a service contract can satisfy the TCPA's consent requirement for pre-recorded calls, even if the calls are not strictly classified as telemarketing. It clarifies that the statutory text does not mandate written consent for all pre-recorded calls, potentially lowering the barrier for businesses making informational calls to customers. The case is remanded to the district court with instructions to enter judgment consistent with the affirmation, effectively ending the plaintiff's claim for damages regarding these calls.
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