A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.
In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.
The plaintiff gave the defendant his cell phone number when he entered into the agreement. He then received several prerecorded calls to schedule the annual inspections. He did not take issue with these calls during the initial term or the renewal terms. But when the calls continued shortly after his last renewal term (because he had not yet scheduled his free annual inspection for that term), the plaintiff filed suit, claimed the calls were telemarketing, and argued he had not provided prior express written consent.
The court disagreed with the plaintiff’s characterization of the calls. It reasoned that the parties’ agreement contemplated an annual inspection during the initial term and each renewal term. Thus, all of the calls to schedule these inspections, including the calls made shortly after expiration of the last renewal term, were related to the parties’ contractual relationship and were informational. The annual inspection for the plaintiff’s last renewal term had not yet occurred, but it still could have taken place within the 30-day grace period. As such, the court described this inspection as a fixed, yet unsatisfied, obligation under the expired contract. The court further found that the plaintiff gave prior express consent when he provided his phone number upon signing up, and he had not revoked that consent or otherwise asked the defendant to stop calling.
Although the Fifth Circuit Court of Appeals had not had occasion to analyze the distinction between telemarketing and informational calls, the court observed that other district courts in the Fifth Circuit had found that “informational messages do not rise to the level of advertising or telemarketing merely because the messages contain some commercial information.” In other words, “[m]essages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements.” Applying this reasoning, the court entered summary judgment in favor of the defendant.
