BRADFORD v. SOVEREIGN PEST CONTROL OF TX INC (2024)

ORDER

Pending before the Court is Defendant Sovereign Pest Control of TX, Inc.’s (“Sovereign” or “Defendant”) Motion for Summary Judgment. (Doc. No. 34). Plaintiff Radley Bradford (“Bradford” or “Plaintiff”) responded. (Doc. No. 37). Defendant replied. (Doc. No. 38). For the reasons articulated below, the Court hereby GRANTS Defendant's Motion for Summary Judgment. (Doc. No. 34).

I. Background

This case concerns the Telephone Consumer Protection Act (“TCPA”). 47 U.S.C. § 227. Sovereign is a pest control company that operates in Texas, Georgia, and Tennessee. In 2017, Bradford entered into a two-year pest and termite control service plan agreement (“Service Plan Agreement”) that was renewed for one-year terms at the option of both parties in 2019, 2020, 2021, and 2022.¹ It is undisputed that Bradford provided his personal cell phone number when he entered into the first Service Plan Agreement in 2017. The Service Plan Agreement provides that:

Pest Control Option: Effective from the initial service plan date through the initial plan period, Sovereign Pest Control shall determine and provide the appropriate treatment to identified premises for ants, carpenter ants, earwigs, roaches, spiders, crickets, millipedes, centipedes, rats, mice, pill bugs, and silverfish once an infestation is discovered. Sovereign Pest Control will inspect and provide general pest applications once annually for the plan period. 100% MONEY BACK GUARANTEE, if residence is not kept substantially free from all covered pests, subject to a final inspection from Sovereign Pest Control. [․]

Termite Service Option: Effective from the initial service plan date through the initial plan period, Sovereign Pest Control shall determine and provide the appropriate liquid treatment for subterranean termites once an infestation is discovered. Sovereign Pest Control will inspect and provide general pest applications once annually for the plan period and any treatment found necessary will be performed at no charge. It is understood that termite damage may occur from the time of infestation until the infestation is discovered and treated. The agreement does not guarantee against present or future damage from covered pests and termites to property or contents, nor provide for the repairs or compensation therefore.

(Doc. No. 34-4 at 2).

Additionally, and relevant to the current dispute, the contract provides as follows:

At the option of Sovereign Pest Control, and the Purchaser, we will extend the agreement annually for $382 per year, payable on or before the end of the previous plan period. Sovereign Pest Control reserves the right to revise the annual service plan after the initial service plan period. After the initial plan period, the agreement will renew annually and all contract conditions and terms will be for the one year renewal period. All applicable Texas state sales tax has been included in the contract price.

Purchaser agrees to arrange for the additional service and adjustment of the annual renewal charge in the event of additions or alterations to the premises. Any additional provisions attached hereto are part of this agreement, including the terms on the reverse side hereof.

(Id.) (emphasis added).

Between 2019 and 2023, Bradford received 38 appointment confirmation calls from Sovereign using a prerecorded message.² These calls are not the subject of the lawsuit, and Bradford admits that they do not constitute telemarketing calls under the TCPA. Bradford also received, however, 24 prerecorded “renewal inspection” calls from Sovereign that left the following message on his cell phone:

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

(Doc. No. 34-3 at 4).

Beginning in August 2017, Bradford scheduled—and Sovereign performed—several inspections at his home. While he was under contract with Sovereign, he apparently did not object to the renewal inspection calls from Sovereign and did not tell Sovereign to stop calling the cell phone number he provided. (Doc. No. 34-2 at 20:16-21:02). Nonetheless, Bradford filed this lawsuit (individually and “on behalf of all others similarly situated”)³ in 2023, alleging that Sovereign's 24 prerecorded renewal inspection calls were telemarketing calls made without Bradford's express written consent and, as such, violated the TCPA.

Sovereign now asks this Court to find as a matter of law that the renewal inspection calls were merely “informational calls” rather than “telemarketing” or “advertising” calls as defined by the TCPA's implementing regulation ⁴ and that “express written consent” was unnecessary under the TCPA. Instead, Sovereign argues that Bradford gave the more relaxed “prior express consent” required for “informational” calls under the TCPA and urges this Court to enter summary judgment in its favor on Plaintiff's TCPA claim.

Bradford responds that, although the parties had a prior contractual relationship, the renewal inspection calls were made for the “sole purpose” of promoting a renewal of pest control service that had not already been contracted or paid for in advance. According to Bradford, these calls meet the definition of “telemarketing” or “advertising” calls made without prior express written consent prohibited under the TCPA. Accordingly, Bradford argues that he has raised a genuine issue of material fact precluding summary judgment on his TCPA claim.

II. Legal Standard

Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the court should not grant the motion. Celotex, 477 U.S. at 321–25, 106 S.Ct. 2548. The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255, 106 S.Ct. 2505. The key question on summary judgment is whether there is evidence raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248, 106 S.Ct. 2505. It is the responsibility of the parties to specifically point the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). It is not the duty of the Court to search the record for evidence that might establish an issue of material fact. Id.

III. Analysis

Section 227(b)(1)(A)(iii) of the TCPA provides that: “it shall be unlawful for any person within the United States ․ to make a call (other than a call made for emergency purposes or made with the prior express consent of the called party) using ․ an artificial or prerecorded voice ․ to any telephone number assigned to a ․ cellular telephone service[.]” 47 U.S.C. § 227(b)(1)(A)(iii) (cleaned up). The TCPA provides a private right of action for injunctive relief and damages. Id. § 227(b)(3). Congress delegated to the Federal Communications Commission (“FCC”) the authority to prescribe implementing regulations for the TCPA. 47 U.S.C. § 227(b)(2). The relevant FCC regulations provide that:

(a) No person or entity may:

(1) Except as provided in paragraph (a)(2) of this section, initiate any telephone call (other than a call made for emergency purposes or is made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice; [․]

(iii) To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. [․]

(2) Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii) of this section, other than a call made with the prior express written consent of the called party[.]

47 C.F.R. § 64.1200(a)(1)(iii), (a)(2) (emphasis added).

The TCPA thus generally prohibits all calls made using an automatic telephone dialing system or an artificial or prerecorded voice unless the caller has the “prior express consent” of the called party. The FCC distinguishes between two categories of automated or prerecorded calls: those that “include or introduce an advertisement or constitute telemarketing,” and those that are, instead, “informational.” Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835, 844 (S.D.N.Y. 2017), aff'd sub nom. Zani v. Rite Aid Hdqtrs. Corp., 725 F. App'x 41 (2d Cir. 2018). Automated or prerecorded informational calls require “prior express consent.” “The FCC has issued rules and regulations regarding the issue of ‘prior express consent,’ stating that ‘persons who knowingly release their phone numbers have in effect given their invitations or permission to be called at the number which they have given, absent instructions to the contrary.’ ” Smith v. Blue Shield of California Life & Health Ins. Co., 228 F. Supp. 3d 1056, 1064 (C.D. Cal. 2017) (citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992)).

By contrast, automated or prerecorded “advertising” or “telemarketing” calls can be made only with the “prior express written consent” of the called party. It is undisputed that Sovereign did not receive Bradford's prior express written consent to make prerecorded advertising or telemarketing calls as defined by the TCPA implementing regulations.⁵ This dispute therefore turns on two issues: 1) whether the renewal inspection calls were “informational” rather than “advertising” or “telemarketing calls,” and 2) if so, whether Bradford gave his prior express consent to receive them under the more relaxed consent standard applicable to informational calls.

A. Whether the renewal inspection calls constitute “telemarketing” or “advertising” calls under the TCPA

The term “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(13). The term “advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services.” Id. at § 64.1200(f)(1). The Fifth Circuit has not weighed in on the distinction between “informational” calls and “advertising” or “telemarketing” calls under the TCPA. Several district courts in this circuit have noted that “informational messages do not rise to the level of advertising or telemarketing merely because the messages contain some commercial information.” Reese v. Marketron Broad. Sols., Inc., No. CV 18-1982, 2018 WL 2117241 at *5 (E.D. La. May 8, 2018) (citations omitted); see also Suriano v. French Riviera Health Spa, Inc., No. CV 18-9141, 2018 WL 6702749 at *2 (E.D. La. Dec. 20, 2018). Generally speaking, courts tend to approach the question of whether a message constitutes advertising or telemarketing “with a measure of common sense.” An Phan v. Agoda Co. Pte. Ltd., 351 F. Supp. 3d 1257, 1262 (N.D. Cal. 2018), aff'd sub nom. Phan v. Agoda Co. Pte. Ltd., 798 F. App'x 157 (9th Cir. 2020) (citing Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)). “Messages 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.” Smith, 228 F.Supp.3d at 1065 (citing Aderhold v. car2go N.A. LLC, No. 14-35208, 668 Fed. Appx. 795, 796, 2016 WL 4709873, at *1 (9th Cir. Sept. 9, 2016) (unpublished)). “Application of the prerecorded message rule should turn, not on the caller's characterization of the call, but on the purpose of the message.” Chesbro, 705 F.3d at 918.

In Smith, the district court considered calls made by Blue Shield of California Life & Health Insurance Company. Smith, 228 F.Supp.3d at 1058. These were prerecorded follow-up calls made to alert existing customers that physical renewal packets were in the mail containing information regarding upcoming changes to their insurance policies. Id. The messages noted that: “it's time to review your 2016 health plan options and see what's new.” Id. The Court found that “simply stated, the text of Blue Shield's telephone call is informational. It notified recipients that they should have received information about changes to their insurance plan, encouraged them to seek out information ․ and directed them to call the member service number (as opposed to the sales department) to resolve any questions or issues.” Id. at 1065-66. Bradford argues that Sovereign's call is fundamentally different than the call at issue in Smith because the insurance coverage in that case was set to renew automatically, whereas the Service Plan Agreement in this case was only renewable at the option of both parties. (Doc. No. 37 at 4-5 n.3).

This is a distinction without a difference. Under the terms of the Service Plan Agreement, Sovereign agreed to inspect and provide general pest applications once annually for the plan period.⁶ According to the Declaration of Robert D. McMichael (“McMichael”), Sovereign's President and Director, the inspection “permitted [Sovereign] to fulfill its contractual promise to provide [Bradford] 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.” (Doc. No. 34-3 at 4-5). 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.⁷ Bradford testified that he understood that the renewal inspection was needed for Sovereign to determine whether to exercise its renewal option. (Doc. No. 38-2 at 32:23-33:06). Further, Bradford “was not charged for the [renewal] inspections because he had already paid Sovereign Pest for the inspections through the preceding year's renewal.” (Doc. No. 34-3 at 5). McMichael testified that a customer could schedule a renewal inspection (or, in this case, a “final inspection”) without ultimately agreeing to a renewal. (Doc. No. 38-3 at 17:22-19:04). Given both the relevant context and the content of the renewal message, the Court finds that the renewal inspection calls were related to the contractual relationship between the parties, and, as such, were “informational” rather than for a telemarketing or advertising purpose under the TCPA.⁸

B. Whether Bradford gave “prior express consent” to the renewal inspection calls

As discussed previously, the TCPA prohibits pre-recorded phone calls made without “prior express consent” of the called party. 47 U.S.C. § 227(b)(1)(A). Consent is therefore a defense to a TCPA claim. Smith, 228 F. Supp. 3d at 1064 (citing Grant v. Capital Mgmt. Servs., L.P., 449 Fed. Appx. 598, 600 n.1 (9th Cir. 2011)). Showing prior express consent is “substantially less burdensome than showing prior express written consent.” Reese, 2018 WL 2117241 at *5.

“The FCC has issued rules and regulations regarding the issue of ‘prior express consent,’ stating that ‘persons who knowingly release their phone numbers have in effect given their invitations or permission to be called at the number which they have given, absent instructions to the contrary.’ ” Smith, 228 F. Supp. 3d at 1064 (citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992)). Indeed, The Seventh Circuit and the Ninth Circuit have both held that a consumer consents to receive messages from a caller so long as the messages are related to the reason the number was provided. See Reese, 2018 WL 2117241 at *5 (collecting cases).

The Court sees no reason to depart from that standard here. It is undisputed that Bradford provided his cell phone number when he signed the Service Plan Agreement with Sovereign. Bradford admits that he “did not previously complain to [Sovereign] about the calls.” (Doc. No. 37 at 9). As a result, Bradford gave “prior express consent” to receiving “informational calls” (such as appointment reminder calls and the renewal inspection calls) during the term of the initial Service Plan Agreement and subsequent renewal periods.

a. Renewal inspection calls made after the expiration of the renewed Service Plan Agreement

Bradford also argues that, at the very least, he did not give prior express consent to the renewal inspection calls made to him on August 11 and August 16, 2021 (after the expiration of the renewal period ending August 7, 2021) and the renewal inspection call made to him on August 11, 2022 (after the expiration of the renewal period ending August 7, 2022) because the Service Plan Agreement renewal periods had lapsed on those dates.⁹ McMichael testified that Sovereign's policy is to provide a 30-day “grace period” after the official contract expiration date for customers to schedule the renewal inspection without an interruption in service. (Doc. No. 38-3 at 19:14-24). An expired contract “has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied.” Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B., 501 U.S. 190, 206, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) (emphasis added). The renewal inspection (or final inspection) was contemplated in the contract but had not yet been completed on the dates listed above. Given this finding, and the fact that the calls occurred in close proximity to the contract expiration date, the Court concludes that Bradford's “prior express consent” extended to those renewal inspection calls made shortly after the expiration date of the previous renewal period.

Bradford has not met his burden to raise a genuine issue of material fact that the renewal inspection calls constituted prerecorded “advertising” or “telemarketing” calls under the TCPA. Further, Bradford gave his prior express consent to receive the appointment reminder calls and the renewal inspection calls when he entered into the original contract with Sovereign. Sovereign's motion for summary judgment (Doc. No. 34) is hereby GRANTED.

FOOTNOTES

1.   The contract provided to the Court was signed in 2017 and expired in 2019. Both parties agree, however, that the contract was extended for one-year terms in 2019, 2020, 2021, and 2022. There is no written documentation in the record of an extension other than the renewal invoices listed on Sovereign's invoice register and offered by Bradford. (Doc. No. 37-1 at 85). Nonetheless, the Court accepts the undisputed fact that the contract was renewed or extended four times under the same terms and conditions as the initial written contract (excepting the price of renewal, which went up every year). (Doc. No. 37-2 at 38:22-39:05).

2.   The company transmitting the prerecorded calls appears to be an affiliated company known as “Southern Pest Control.” (Doc. No. 37-1 at 15:05-12). For the purposes of this motion, however, the Court refers to the practices of both entities as those of Defendant Sovereign.

3.   Although styled as a putative class action, Bradford has not moved for class certification since the Complaint was filed in February 2023.

4.   47 C.F.R. § 64.1200(a)(1)(iii).

5.   The regulation defines “prior express written consent” in relevant part as follows: “The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.” 47 C.F.R. § 64.1200(f)(9).

6.   For the Termite Service Option, both parties agree that “Sovereign Pest Control will inspect and provide general pest applications once annually for the plan period[.]” (Doc. No. 34-4 at 2). For the Pest Control Option, the contract provides that “Sovereign Pest Control will inspect and provide general pest applications once annually for the plan period.” (Id.). The “money back guarantee” for the Pest Control Option is also subject to “a final inspection by Sovereign Pest Control.” (Id.). Bradford selected both options. (Id.).

7.   In practice, customers may have been able to schedule multiple inspections during the plan period. In Bradford's deposition, he was asked: “Was there an inspection done of your home by Sovereign at the time that this contract was entered into originally?” and responded: “I was told it was unlimited; anytime I needed them to come by, they would come by.” (Doc. No. 34-2 at 18:23-19:02). The contract language, however, guarantees only one.

8.   The Court is unpersuaded by Bradford's argument that the renewal inspection calls are “dual purpose” calls as described in the FCC's 2003 report on this subject. The report defines “dual purpose” calls as “calls from mortgage brokers to their clients notifying them of lower interest rates, calls from phone companies to customers regarding new calling plans, or calls from credit card companies offering overdraft protection to existing customers.” In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014 (2003). The mutual renewal option is explicitly listed in the Service Plan Agreement, and an inspection is required before Sovereign decides to exercise its option under the contract. The renewal inspection may also qualify as the one annual inspection explicitly provided for under the contract. This is clearly distinguishable from a call offering an entirely new set of products, services, or goods for sale at the same time the company inquires about or otherwise discusses an existing service with the customer. See id.

9.   It is undisputed that, starting in 2019, Bradford's contract with Sovereign expired annually on August 7 unless he took steps to renew. See (Doc. No. 37 at 3; Doc. No. 37-1 at 48:20-49:14).

Andrew S. Hanen, United States District Judge