Bradford and Bradley — Redefining TCPA Consent in Some Courts

Earlier this year, the Court of Appeals for the Fifth Circuit dropped a bombshell with its decision in Bradford v. Sovereign Pest Control of Texas. The Fifth Circuit reshaped the TCPA landscape when it held that for purposes of the TCPA’s pre-recorded call to cell phone provisions, “[w]hether . . . pre-recorded calls . . . qualif[ied] as telemarketing or informational calls, those calls required only prior express consent.”[1] In other words, pre-recorded calls to cell phones that qualify as telemarketing may be able to satisfy the consent standard without prior express written consent — a game changer.

Defendants in the Fifth Circuit are no longer alone, as the US District Court for the District of Maryland recently agreed with Bradford. To set the stage, in Bradley v. Dentalplans.com, the District of Maryland had granted class certification and denied a defendant’s motion for summary judgment.[2] Central to those decisions was whether the calls at issue were telemarketing and whether the applicable consent standard had been satisfied. A defendant moved for reconsideration and decertification, persuasively arguing that post–Loper Bright Enterprises v. Raimondo and McLaughlin Chiropractic Associates v. McKesson Corp., the court’s prior decisions were not founded on a correct interpretation of the TCPA.[3]

The District of Maryland agreed, explaining:

[T]he Court is not convinced that the FCC’s requirement of “prior express written consent” is permissible in the wake of Loper Bright. . . . [I]n the business of statutory interpretation, if [an interpretation] is not the best, it is not permissible . . . . Because Congress has required only prior express consent, not prior express written consent, that is all that is required to overcome an alleged TCPA violation.[4]

With that framework settled, the court concluded that the plaintiff provided adequate consent when she orally consented.[5] Having granted summary judgment for the defendant, the court elected to also decertify the class.[6]

Bradford and Bradley emphasize the uncertainty of a post–Loper Bright and McKesson landscape. While both decisions are very positive developments, companies using regulated technology should continue to exercise caution as the cases, despite possibly signaling a developing trend, are not binding nationwide and in light of state mini-TCPAs. 
 

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