We aim to highlight the importance of due diligence in lead campaigns and to keep our customers and industry associates up-to-date with the compliance news reported for our industry. The following article repost from TCPA World is reprinted here for our readers, courtesy of our legal partners Troutman Amin LLP.
Court Holds Pest Control Inspection Calls Were Not Telemarketing Under the TCPA and it Really Helps Put Things into Perspective
by Eric Troutman
I love a good double entendre. A pest control TCPA case that may help control the pests bringing TCPA cases. Love it!
One of the trickiest issues in TCPAWorld is determining whether or not a message is marketing or informational. The rule has long been that messages sent for a “dual purpose” are treated as marketing. Hence, a message advising consumers that interest rates have dropped for the purpose of encouraging refinance is a marketing message– even if the content of the message is purely informational.
But in a new case, a Court has implied a limit to such dual purpose intentions where a contractual requirement contemplated an annual inspection, and I think it’s just right.
In Bradford v. Sovereign Pest Control, 2024 WL 3851229 (S.D. Tex. Aug. 16, 2024) the defendant had left 38 prerecorded messages trying to schedule an appointment for an inspection of a property. The inspection was contemplated by contract to occur annually to allow the Defendant to determine whether to extend the contract.
The plaintiff argued the contract had already expired and the calls were marketing because they were designed to allow the defendant access to the property in the hopes of renewing the pest control contract.
But the court disagreed. Concluding that the contract called for the annual inspection–and given that the annual review was free–the Court granted the defendant’s motion for summary judgment concluding the messages were NOT marketing but merely informational/transactional.
This is a massive win for the defendant, who would have been facing absolutely crippling damages had the case gone the other way. Since the messages were not marketing in nature, the court concluded consented existed for informational purposes– such express consent is presumed whenever the consumer provides the number directly to the caller in connection with the contract (probably.)
Big win here and I love seeing it. Really tough to know where the line is between marketing and non-marketing these days, and it is satisfying that at least one court sees messages aligned with contract terms as informational–that just makes sense to me. 1
1. In a related New Jersey case, the court determined that a pharmaceutical fax was informational and not marketing, thus ruling on behalf of the defendant. Learn more.
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