Telephone and Texting Compliance News: Litigation Update — Contract Language Brings Telemarketing TCPA Allegations to a Halt

One of the most difficult questions to answer in the context of the Telephone Consumer Protection Act is whether a call or text message qualifies as telemarketing and requires heightened consent. In the last month, the US District Court for the Southern District of Texas provided valuable guidance on the issue in Bradford v. Sovereign Pest Control, highlighting the importance of contractual language and context when answering the question.

The case originated when the plaintiff entered into a pest and termite control service plan agreement with the defendant in 2017 that was renewed for one-year terms at the option of the parties through 2022 and, while entering into the agreement, provided his cell phone number.[1] The agreement read:

At the option of Sovereign Pest Control, and the Purchaser, we will extend the agreement annually for $382 per year . . . . After the initial plan period, the agreement will renew annually and all contract conditions and terms will be for the one year renewal period.[2]

During the life of the contract, the plaintiff allegedly received 24 prerecorded “renewal inspection” calls leaving the following message:

Hello. This is a courtesy call from Sovereign Pest Control. We need to schedule the renewal inspection for [plaintiff’s address]. Please call 1-800-394-4737 to schedule your inspection. Thank you.[3]

The court noted that while the plaintiff “was under contract with Sovereign, he apparently did not object to the renewal inspection calls . . . and did not tell Sovereign to stop calling the cell phone he provided.”[4] The plaintiff “[n]onetheless . . . filed this lawsuit . . ., alleging that Sovereign’s 24 prerecorded renewal inspection calls were telemarketing calls made without [his] express written consent” in violation of the TCPA.[5] The court made swift work of the case, finding that the calls were not telemarketing and therefore did not require prior express written consent but instead could be made with prior express consent, which existed here.

First, the court explained that the renewal inspection calls were not telemarketing and instead were informational because they related to the contractual relationship between the parties:

According to the Declaration of . . . Sovereign’s President and Director, the inspection “permitted [Sovereign] to fulfill its contractual promise to provide . . . at least one annual inspection free of charge;” and “it revealed current and/or changed conditions within the premises and informed [Sovereign’s] decision of whether to agree to renew the Service Plan Agreement.” . . . The renewal inspection was thus contemplated in the Service Plan Agreement as an “annual inspection” that could also lead to the potential renewal of the contract.[6]

As a result of the context within which the calls were made and their content, the court concluded the calls were “related to the contractual relationship” and were not telemarketing.[7]

Second, because the calls were not telemarketing, the defendant only needed prior express consent, which the plaintiff provided when he gave the defendant his cell phone number.

It is undisputed that [plaintiff] provided his cell phone number when he signed the Service Plan Agreement . . . . [Plaintiff] admits that he “did not previously complain . . . about the calls.” . . . As a result, [he] gave “prior express consent” to receiving “informational calls” . . . .[8]

With that, the court granted summary judgment in favor of the defendant, illustrating the importance of contractual language and context when navigating the tricky issue of whether a call or text message qualifies as telemarketing under the TCPA.

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