On February 25, the U.S. Court of Appeals for the 5th Circuit affirmed a district court’s summary judgment in favor of a Texas pest-control company, holding that the plaintiff had provided prior express consent for pre-recorded calls under the Telephone Consumer Protection Act. Reviewing the case de novo, the panel found no genuine dispute of material fact and concluded that whether the calls qualified as telemarketing or informational, the statute permits such calls if the caller has the prior express consent of the called party. The court interpreted “express consent” according to its plain meaning at enactment in 1991, defining it as “positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.” The court rejected an FCC regulation requiring prior express written consent for certain calls, stating Congress allows either oral or written consent for any auto-dialed or pre-recorded call.

The plaintiff had entered into a service-plan agreement and provided his cell number so the company could contact him, later confirming that permission during conversations and never asking the company to stop calling. According to the opinion, the calls led to scheduling renewal inspections, and the plaintiff renewed his service plan four times during the relationship. The court found that this “continuing relationship” supported its conclusion that the plaintiff’s express consent applied to such calls. Finally, the court noted that arguments asserting only implicit consent or challenging FCC interpretation were raised for the first time in reply and thus deemed forfeited under existing precedent.