In Bradford v. Sovereign Pest Control of Texas, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Telephone Consumer Protection Act (TCPA) does not require “prior express written consent” for telemarketing calls that use artificial or pre-recorded voice messages. Instead, the court concluded that the TCPA requires only “prior express consent,” which may be provided orally or in writing.

This decision undercuts the FCC’s more stringent “prior express written consent” requirement for certain telemarketing calls and provides an important defense for businesses facing TCPA exposure in the Fifth Circuit (Texas, Louisiana, Mississippi).

Background

The plaintiff entered into a pest‑control service plan with Sovereign Pest Control of Texas (Sovereign). When he signed up, he provided his cell phone number and stated he did so in case the company “needed to get in contact” with him. Over several years, Sovereign used pre‑recorded calls to the plaintiff’s cell phone to schedule “renewal inspections.” Far from objecting, the plaintiff took advantage of those calls to schedule inspections. He also renewed his service plan four times. Importantly, the plaintiff never revoked his consent by asking Sovereign to stop calling him.

Bradford later filed a putative TCPA class action, claiming the renewal‑inspection calls were telemarketing made without his prior express written consent.

The Fifth Circuit’s Decision

In reaching its holding, the Fifth Circuit focused on the statutory text. The TCPA only requires “prior express consent”, not “prior express written consent” for calls that use artificial or pre-recorded voice messages. The statute does not make any distinction between telemarketing and informational calls for purposes of the consent standard. The court looked to the definition of “express consent” from 1990 when the TCPA was enacted. Black’s Law Dictionary defined “express consent” as consent “directly given, either viva voce or in writing,” meaning it may be given orally or in writing.

The court then contrasted the language of the statute with the FCC’s implementing regulation that requires “prior express written consent.” It rejected the FCC’s attempt to add the word “written” into the statute. The court held: “Thus, contrary to the FCC’s regulation, Congress permits either written or oral consent for any auto-dialed or pre-recorded call, as the TCPA specifically permits such calls if the caller has ‘the prior express consent of the called party.'”

Key Takeaways

  • Bradford is a Fifth Circuit decision. Other courts may continue to defer to the FCC’s regulation requiring a heightened standard of consent for telemarketing calls using artificial or pre-recorded voice messages.
  • In the Fifth Circuit, a consumer’s provision of a telephone number, combined with a statement indicating that the number can be used to contact the consumer, constitutes prior express consent for telemarketing calls.
  • State laws still apply. Businesses should check the laws of the state where the consumer resides to determine whether written consent is still required.
  • Although Bradford’s reasoning should apply to the FCC’s attempt to add the word “written” to the “prior express permission” needed to call numbers on the Do Not Call Registry, businesses should proceed with caution when calling those numbers until a court addresses the question directly.