By: Jeffrey Backman, Esq. and Roy Taub, Esq.
The Fifth Circuit’s decision yesterday in Bradford v. Sovereign Pest Control of TX, Inc. marks a significant decision overruling the FCC’s determination that “prior express written consent” is required for certain prerecorded telemarketing calls. The court held that the TCPA’s phrase “prior express consent” encompasses both oral and written consent for prerecorded calls to wireless numbers and nothing in the statutory text demands written consent even for telemarketing calls. The panel affirmed summary judgment for the defendant, concluding the plaintiff had provided prior express consent by supplying his cell phone number and acknowledging the company could contact him, and that the TCPA requires nothing more.
The Decision and Its Core Reasoning
Bradford sued under the TCPA after receiving prerecorded “renewal inspection” calls to his cell phone from a pest-control provider with whom he had a service-plan agreement, arguing the company lacked his prior express written consent. The Fifth Circuit affirmed, emphasizing that courts, in enforcement proceedings, must interpret Congress’s text using ordinary tools of statutory interpretation without deferring to agency interpretations, and that the TCPA’s operative provision prohibits prerecorded calls to cell phones absent the “prior express consent of the called party.” On the statute’s plain meaning, “prior express consent” includes either oral or written consent, contrary to the FCC regulation requiring “prior express written consent” for telemarketing calls. The court found that the regulation issued by the FCC, 47 C.F.R. § 64.1200(a)(2), improperly added a written-consent requirement that the statute does not contain.
What Counted as Consent Here
The plaintiff provided his cell number when entering the service-plan agreement and explained he did so the company could get in touch with him; he later confirmed the company could call his cell, did not object to the calls, scheduled inspections following the calls, and renewed the plan four times. On these facts, the court held he gave “prior express consent,” which sufficed for any prerecorded call under the TCPA regardless of whether the calls were telemarketing or informational.
Key Takeaway
Bradford confirms that the TCPA’s “prior express consent” does not embed a “written” requirement for prerecorded calls, and that oral consent can suffice even for telemarketing, undermining a contrary FCC regulation.
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