Fifth Circuit Limits TCPA Prior Express Written Consent Requirements

By Shahin O. Rothermel, Ellen T. Berge, Jay Prapaisilp & Michaela Bevan

Last week, the Fifth Circuit Court of Appeals held that the Telephone Customer Protection Act (TCPA) permits businesses to obtain only prior express consent rather than prior express written consent for autodialed and prerecorded calls and texts. This holding expressly rejects the Federal Communication Commission’s (FCC) interpretation of the TCPA’s consent requirement first promulgated in 2012.

In Bradford v. Sovereign Pest Control, the Fifth Circuit affirmed the lower court’s grant of summary judgment to the defendant, refusing to apply a stricter consent standard to telemarketing texts than to non-telemarketing or informational messages. In the case, the court rejected the FCC’s long-standing regulation that interpreted the TCPA to require prior express written consent for telemarketing messages, holding that because the TCPA’s statutory text does not distinguish between telemarketing and non-telemarketing/informational messages, courts should not apply a stricter consent standard for telemarketing messages.

Express Consent vs. Written Consent

The Fifth Circuit held that under Loper Bright, it must interpret the TCPA using “ordinary principles of statutory interpretation” without deferring to the FCC. Because the plain text of the TCPA makes no distinction between telemarketing and informational messages, the FCC’s regulation impermissibly added legal consent requirements not authorized under the statute. Thus, the court held the defendant only needed to obtain the plaintiff’s “express consent” prior to making a prerecorded call, telemarketing or otherwise. The panel concluded that the following constituted sufficient prior express consent:

• Plaintiff voluntarily gave defendant Sovereign Pest his phone number when he submitted his service-plan agreement

• Plaintiff expressly stated that he provided Sovereign Pest his phone number so that the company could contact him

• Plaintiff orally confirmed that Sovereign Pest could call him

While the plaintiff argued that he intended his number to be used only for appointment reminders or informational messages, the court noted he did not so limit the calls when he provided his number and never objected to Sovereign Pest’s calls or asked the company not to call him. Because the plaintiff renewed his service plan over the course of several years with no protest, the court held that his ongoing relationship with Sovereign Pest supports a finding of prior express consent.

Telemarketing Compliance After Fifth Circuit Ruling

The Fifth Circuit did not strike the FCC’s regulation, meaning that prior express written consent is still required in jurisdictions where courts have not disturbed the FCC’s rule. However, the Bradford opinion illustrates modern courts’ pushback against ambitious regulators and class action plaintiffs. This case follows the Supreme Court’s decision in McKesson Corp., whichempowered federal courts to ignore the FCC’s interpretation of the TCPA during enforcement proceedings.

The Bradford case also highlights how telemarketers must now contend with uncertainty surrounding the legal consent required, ascourts in different jurisdictions continue to reject deference to administrative agencies’ interpretations of the law.

For more insights into advertising law, bookmark the All About Advertising Law blog and subscribe to our monthly newsletter. To learn more about Venable’s Advertising Law services, click here. And listen to the Ad Law Tool Kit Show—a podcast from Venable.