S4 E08: Analyzing the Written Consent Ruling

Audio version

Analyzing the Written Consent Ruling

Transcript

Jordan Eisner  
All right. Hello and welcome to another episode of CompliancePointers and another guest appearance by our very own Tony Jarnigan. Hey, Tony, good to have you.

Tony Jarnigan  
Thank you very much, Jordan. It’s been a while.

Jordan Eisner  
Yeah, and this, this podcast will be released in the future. But as of this very moment, March Madness continues today. It’s Friday, and Santa Clara and Kentucky are in a battle. Looks like Kentucky is going to pull out, but.
We will. We’ll do our best to stay focused here on this podcast. I don’t have any scores or anything up. We’re here to learn about the details on the Bradford verse.
Sovereign Pest Control of Texas case, which is apparently creating a little bit of buzz in the telemarketing compliance space. So for those of you who don’t know or maybe need a refresh, CompliancePointers is the podcast of CompliancePoint. That’s a company that Tony.

Tony and I both work for I am the VP of Growth and CompliancePoint. Tony, are you a consultant? Is that the official title?

Tony Jarnigan  
Consultant. I’m I’ve been looking for ways to see if we can embellish that somewhat, but as of now it’s still consult.

Jordan Eisner  
Consultant extraordinaire, there you go, CE for short and CompliancePoint among a whole host of other regulatory and I’d say data privacy and information security.

Tony Jarnigan  
Thank you.

Jordan Eisner  
Services also provides a very niche service I would say and that is advisory and consultative expertise really having to do with telemarketing.
So FCC and FTC regulations around calling, texting, emailing and but also state specific and that’s part of the topic here today too is different states.
Operate differently when it when it comes to the rules of consent and you know, outbound calling and calling time restrictions and what’s an established business relationship and how long you need to maintain record and so on and so on and so on, right. Several, several nuances, so.
As mentioned, we’re going to get into the Bradford versus Sovereign Pest Control of Texas case today with Tony here. So let’s dive right in. Give us the details on that case, Tony.

Tony Jarnigan  
Yeah. Well, it’s interesting case to be sure, but you know, just to give you a little bit of background, I’m assuming four or five years ago the plaintiff entered into a Service plan agreement with Sovereign Pest Control.
And provided his cell phone number so that the company could continue to to contact him. And then each year, for about four years, the Sovereign Pest Control used pre-recorded messages to remind him to schedule his annual renewal inspections.
And then this the guy actually ends up being a a serial litigant. And so four years into this he, I guess, learns about this and says, you know what, four years ago they never got my express written consent.
Which is what is needed to deliver pre-recorded messages to my cell phone. And so he brought a suit and the trial court held that.
These were only informational texts. They weren’t solicitors. And so this ends up being a, you know, sort of a result of a ruling from the FCC in 2012, I believe, where they said that.

Jordan Eisner  
OK. Yeah.

Tony Jarnigan  
You have to have expressed written consent to deliver a pre-recorded message or artificial voice, or if you’re using an ATDS to a cell phone for telemarketing calls, but you only need express consent for informational calls.
And the difference there is that if you know if I can, I can give you my phone number during the normal course of business and with no consent language or checking a box or signing anything and that’s considered express consent. However, express written consent means that I have to sign or you know, digitally sign or check a box or that sort of thing. So he says, you know, right, exactly certain disclosures. So he says, you know, they didn’t have my expressed written consent, so I’m going to sue. And like I said, the trial court said, well, actually we wouldn’t consider these to be solicitous messages. They’re only informational.

Jordan Eisner  
Right. And other disclosures are made, right? Yeah.

Tony Jarnigan  
So he appealed and then on appeal, the 5th Circuit Court of Appeals held that the TCPA only requires prior express consent, not prior express written consent, even for telemarketing pre-recorded calls to wireless numbers and.
So this ends up being another challenge to the FCC ruling, right from 2012 or another challenge to FCC’s positions and interpretations and said that, you know, we don’t, you know, this is all I don’t want to get too far ahead of ourselves here, but this is all a result of, you know, those two important cases from 2024 and 2025, you know the Loper Bright decision in 2024 and McLaughlin Chiropractic Associates decision in 2025 that held that you know trial courts or you know federal trial courts are not bound to be to in follow FCC interpretations. So that’s exactly what’s happened here. We sort of anticipated it. There’s a lot of professionals in our space that have anticipated this. I know you had Alex Krasovec on last year, you know, and went through a litany of things and said, well, what do we think will be challenged?
And one was that texts aren’t calls and we know that that’s being challenged. And now the challenge to this, the FCC ruling from 2012 that says that you know certain calls for certain purposes has to be in writing because the TCPA does not say that at all. So that’s exactly the, I mean, that’s the groundwork for this decision.

Jordan Eisner  
Yeah, well, you covered a lot of territory there, I think. And then, you know, it’s good. No, it’s good though. Yeah, yeah. Well, the background, the details of the case, but then also I think why it’s creating buzz because.

Tony Jarnigan  
We did. So it’s all, it’s all connected, you know?
Yeah.

Jordan Eisner  
And we’re lumped right in there had always understood that if it’s a solicitation, right, a telemarketing call, that it would require express written consent, so.

Tony Jarnigan  
Right. And the and the 5th, the 5th Circuit Court of Appeals says it doesn’t make any difference in the 1st place, whether they’re informational or solicitous, because the TCP doesn’t require it for any type of call.

Jordan Eisner  
So what do you do with that?

Tony Jarnigan  
Well, what you do with it is, is you have to, you have to think about, well, what court is this, right? It’s a federal court. It’s the, the, you know, the 5th Circuit Court of Appeals and they the 5th Circuit Court of Appeals covers Texas.
Louisiana and Mississippi, you know, so we’ve got states throughout the country, you know, that are part of different circuit courts of appeal. There are 13 circuit courts of appeal across the country, and this is the 5th Circuit Court of Appeals, so this decision is only binding on the trial.
Trial-level courts in those three states. So you know, immediately, you know, we started hearing businesses saying, well, Gee, if I only operate in those three states, you know, I’ve got a small business only operate in Texas or or Louisiana or Mississippi, then you know, I don’t need, I don’t need express written consent.
To send pre-recorded messages. But right, right. But you got to be careful, right? Because you know.

Jordan Eisner  
Yeah, you just need provision of phone number.

Tony Jarnigan  
There are, as you pointed out earlier, right, some of these rules can and laws could come on the state level, right? So we know that Texas, for example, as a result of SB 140 last year went into effect on September one, right. They have consent requirements.
They don’t necessarily define consent, but because of the risk that’s associated there, you know, the private right of action, everybody’s saying, you know, apply the highest standard possible to your consent in Texas. So I I wouldn’t necessarily advise that, you know you’re gonna get a free ride here now.
There’s other, there’s, there’s other, you know, we could very well see a decision from a District Court of Appeal and another District Court of Appeal to rule differently. And then, you know, then when you’ve got that happened and you’ve got a, you know, you’ve got a what’s considered a Circuit Court split.

Where one is ruling one way and one is ruling another. And then, you know, usually the most logical conclusion there is is for it to be, you know, one of those to be elevated to the Supreme Court and have the Supreme Court decide. What would really be great is if the Congress could finally amend.
You know, the TCPA to give some shed some light on some of this stuff, right? I mean, I’ll, I’ve often said, I think I’ve even said on your podcast that, you know, people think, well, yeah, the FCC, they’re overreaching. You know, the administrative state in our country is now the 4th branch of government and they’re overreaching and they’re making law instead of, you know, passing rules to implement laws. But you know, they’re they’re the ones, the FCC and the FTC in our world, they’re the ones who are getting these complaints, right? So they’re the ones that say, well, Gee, now technology is advanced. Now we’ve got texts. You know, what do we do with texts? And they’re saying, well, OK.
Well, yeah, we think that texts are calls. What are we doing about robocalls? You know, we’re, you know, my phone’s blown up from pre-recorded messages from people that I didn’t even give consent to. They’re saying, well, OK, then it needs to be and and consent should be in writing, right to to. And to your point, you know, you have to agree to all those disclosures.

Jordan Eisner  
Right.

Tony Jarnigan  
So, you know, they’re, I see it as that they’ve been trying to step in and clear the air on a lot of this stuff. You know, where technology is outpacing the laws or in this case the TCPA because, you know, Congress hasn’t acted to amend it. You know, we saw an attempt.
What was it early 2024 with what was called the Do Not Disturb Act? You know that would have addressed some of this stuff and but it didn’t. For whatever reason, it didn’t go anywhere. We thought it might be picked back up in 2025, but so far we haven’t seen anything in 2025 or 2026.

Jordan Eisner  
Yeah, it’s got to be confusing for telemarketers right now. When I say telemarketers, I mean on CompliancePoint as telemarketers, we’re using a lot of times, you know, federal or state definitions of telemarketer, which is broad.

Tony Jarnigan  
Right.

Jordan Eisner  
That’s why, you know, I think.
It’s not only interesting that the trial court said.
It doesn’t matter what the TCPA doesn’t require express written consent, right? That’s surprising itself, but also that the initial ruling that there were informational calls because part of what I have always been told is that if it’s part of a plan.

Tony Jarnigan  
Great.

Jordan Eisner  
Or campaign, right, for some sort of solicitation, even if not initially, but down the line. I mean, I could see that argued that way too. It’s a reminder about a renewal right of services where payments probably going to be exchanged.

Tony Jarnigan  
Right, right. No, I, you know, absolutely. Yeah, absolutely. You know, because there’s, I think to your point that, you know, there’s another school of thought out there that says that, you know, if you’re, if you’re whatever steps you’re trying to take to consummate a deal or another deal or an upgrade or to re-up, right.

Jordan Eisner  
Very interesting. So yeah, so it’s gotta be a confusing time.

Tony Jarnigan  
You know that that could be solicited as in and of itself. But you know, in this particular case the, you know, the trial court initially said that no, we think these are informational calls. You know, they they they went by the the, the, the construct of the FCC, if you will, right, and said no, these are informational calls, so they don’t need.

Jordan Eisner  
Right.

Tony Jarnigan  
Written consent. The fact that the plain of supplied as a number during the normal course of business is sufficient here. And but what I find interesting too is, is that, you know, this 5th Circuit Court of Appeals, they could have just affirmed that, right? They could have just said, you know, we think these are informational calls as well.
And and and therefore, you know, we we’re we’re going to affirm the lower court decision. But they want us, they went a step further. They said it doesn’t make any difference whether they’re informational or or solicitous because we don’t think that the TCPA requires express written consent to begin with.

Jordan Eisner  
Very interesting. Yeah. Yeah. Because I was thinking too, even when you were talking about small businesses only, only telemarketing in the Texas, Louisiana or Mississippi, you know, maybe they start to take that. But you’re right, just those courts, it seems like there’s other.

Tony Jarnigan  
Yeah, yeah.

Jordan Eisner  
There’s other gotcha ways, right, that that they could get, you know, find themselves in in hot water. Because when you were saying that, I was also thinking, well, what about, I mean, Texas is a big state, a lot of residents in Texas, a lot of consumers for even a company that.

Tony Jarnigan  
Right.

Jordan Eisner  
Does market into all states to almost segment?
Residents of Texas and say, hey, we only need this sort of consent for them, you know, dial away. But I think there’s just.

Tony Jarnigan  
Right.

Jordan Eisner  
Many other, you know, avenues probably where they could find themselves out of compliance just because one trial court says it. I think you sum that up pretty well. So you know, I think to put a bow on it and I know I think we’re only 15 minutes or so in this, but you covered it well. I think you you gave the situation and I would say.

Tony Jarnigan  
Right.

Jordan Eisner  
Say for any of our listeners that want more, you know, reach out. But you got to continue to do what you’ve been doing really. For the most part it doesn’t. It doesn’t necessarily. It’s a head scratcher maybe, but not something to take a run with because you could find yourselves right on the on the other side of some compliance issues.

Tony Jarnigan  
No.
Right.
Yeah.

Jordan Eisner  
If you do.

Tony Jarnigan  
Yeah, I was just going to add too that, you know, like I said, you know, there were a lot of us that said, well, you know, once once the Loper-bright decision came out and the McLaughlin decision came out and it’s like, you know, the trial courts don’t have to adhere to FCC. It’s like, well, what, what changes, what might we see, right. Like I said, you know.
Tax aren’t calls was one of them and that happened within a month I believe and now.
You know, then another one that was on everybody’s bingo card, if you will, was you know that are we going to find to have a court that says that you know that the TCP doesn’t require written consent and that and then we’ve got it. I don’t know where we go from here in terms of, you know, is there going to be another? And they both have happened.

Jordan Eisner  
Yeah.
Well, Tony, thank you. As always, very concise but detailed at the same time. So no, that was good. I think that was a good recap for our listeners and watchers. If you have questions on this, if you’re considering, you know, what sort of adaptations do we make to our campaigns, if any?

Tony Jarnigan  
OK.

Jordan Eisner  
And you want a sounding board for that, please don’t hesitate to reach out. You can find us at compliancepoint.com. You can e-mail us directly at connect@compliancepoint.com. We’ll be happy to go over your situation with you, tell you a little bit more about what we do and see if maybe there’s an opportunity to support beyond that. And if you like this podcast, please continue to listen, subscribe.

Tony Jarnigan  
Absolutely.

Jordan Eisner  
Subscribe. Tell your friends. Leave us a review. We’ll continue to put out content like this and in other areas of regulatory compliance and information security. Tony, have a great rest of your day and everybody else be well.