When you give a company your cell phone number, how much are you really agreeing to? A recent decision, Bradford v. Sovereign Pest Control, addresses that question, at least in Louisiana, Mississippi, and Texas. The court ultimately said that the key issue is whether you clearly agreed to be called in the first place — and that kind of consent does not always have to be in writing.
TCPA, FCC Rules, and Consent
Let’s start with the law at the center of it all, the Telephone Consumer Protection Act (TCPA). This statute makes it unlawful to place certain auto-dialed or prerecorded voice calls to wireless numbers unless the call is for an emergency or made with the prior express consent of the called party.
Congress told the Federal Communications Commission (FCC) to issue regulations, and the agency drew a line between telemarketing calls and informational calls in its rules and orders. Under 47 C.F.R. § 64.1200(a)(2), federal law requires prior express written consent for prerecorded telemarketing calls to wireless numbers, while allowing more flexible forms (like oral consent) for informational calls. Earlier FCC rules also stated that a person who knowingly gives a company their phone number has, in effect, invited calls to that number, treating that as enough consent for certain non‑telemarketing calls.
A Pest-Control Service Plan and Renewal Calls
A recent case illustrates how courts apply the TCPA. Radley Bradford was a Texas resident who wanted to de‑critter his home, so he signed a contract with a statewide pest‑control company called Sovereign Pest Control for residential services. When he signed up, he wrote his cell phone number on the service plan agreement so the company could contact him.
While the service plan was in effect, Sovereign (through a vendor) made a series of automated calls to Bradford’s cell. The messages reminded him to schedule “renewal inspections,” which would keep his service plan going. Bradford did, in fact, schedule inspections and renewed the plan four times, but later said he viewed those calls as marketing robocalls pushing him to keep buying the plan, not just neutral reminders.
Bradford eventually filed a putative class action in federal district court under 47 U.S.C. § 227(b)(3). He claimed that he had received years of unwanted automated calls but had never given the company prior express written consent. He asked the court to declare the calls unlawful under the TCPA and to order Sovereign to pay statutory damages for each illegal call.
The district court granted summary judgment to Sovereign. It treated the calls as reminders about an existing service rather than new sales pitches and noted that Bradford had agreed to be called when he gave the company his cell number and never took that permission back or narrowed it.
No Deference to Agency Interpretation
On appeal, Bradford argued to the Fifth Circuit that the renewal inspection calls were telemarketing calls under FCC rules and therefore required prior express written consent, which he said he never gave. That argument ran into a changing legal landscape for TCPA litigation.
In McLaughlin Chiropractic v. McKesson Corp., the U.S. Supreme Court made it clear that courts deciding TCPA cases must interpret the text of the TCPA for themselves and are not bound to follow an agency’s reading. McLaughlin, in turn, built on Loper Bright Enterprises v. Raimondo, which rejected broad deference to agencies and told courts to use ordinary tools of statutory interpretation instead of automatically accepting agency interpretations whenever Congress leaves gaps or ambiguities.
Taking that direction, Chief Judge Jennifer Walker Elrod, writing for a unanimous panel, began by examining how Congress used the phrase “prior express consent” when it passed the TCPA. The court read “express” to mean consent that is directly given, either orally or in writing, in a clear and definite way. From there, the Fifth Circuit’s decision reached two key conclusions. First, the statute does not treat telemarketing calls and informational calls differently when it comes to the form of consent: any covered auto‑dialed or prerecorded call to a wireless number needs prior express consent, but nothing in the text says that consent must be written.
Second, to the extent TCPA rules, FCC rules, and the FCC’s interpretation demanded prior express written consent for some calls or treated consent as implied for others, those agency interpretations could not override the statute’s single, uniform express‑consent standard. Applying that understanding, the panel agreed that Bradford had given prior express consent by providing his cell number, affirming more than once that Sovereign could call it, never revoking that permission, and continuing to renew his service plan after receiving the renewal messages.
Takeaways for TCPA Litigation and Businesses
For TCPA litigation in federal courts within the Fifth Circuit’s territory, Bradford underscores that judges will focus first on the language Congress put in the TCPA and will not treat FCC regulations as controlling when they go beyond the statutory text. Parties arguing about robocalls to wireless numbers should be ready to address the statute’s consent language directly, not just rely on agency rules that demand written consent.
For businesses that use prerecorded or auto‑dialed calls to reach customers’ cell phones, the Fifth Circuit’s ruling stresses the need for clear consent practices but also clarifies that, at least in this circuit, spoken consent tied to an ongoing service plan relationship can satisfy the TCPA’s basic consent requirement. Consumers can still bring class actions over unwanted telemarketing calls and robocalls, but Bradford suggests that when someone knowingly gives a company their cell phone number and agrees to be contacted, courts in the Fifth Circuit may find that constitutes sufficient prior express consent under the statute.
Related Resources
- FCC Rules on Robocalls (FindLaw's Law and Daily Life)
- SCOTUS 'Places a Tombstone' on Chevron (FindLaw's Federal Courts)
- Telemarketing Laws (FindLaw's Learn About the Law)
