In Van Elzen v. American Home Shield Corp., No. 24-C-1206, 2026 WL 1078771 (E.D. Wis. Apr. 21, 2026), the United States District Court for the Eastern District of Wisconsin granted summary judgment to American Home Shield Corporation (“AHS”) in a putative class action alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The decision offers important guidance for companies that engage in text-based marketing, particularly on two issues: what constitutes “prior express consent” under the TCPA and how a robust compliance program can invoke the statute’s safe harbor defense.

The Facts: A Familiar Pattern in TCPA Litigation

The plaintiff alleged that AHS sent him four unsolicited text messages about home warranty products in August 2024, despite his phone number being listed on the National Do Not Call (“DNC”) Registry since 2011. The plaintiff denied ever visiting AHS’s website, emphasizing that he is a renter with no reason to inquire about home warranties and that his name was misspelled in the email address AHS had on file.

AHS told a different story. It contended that someone using the plaintiff’s contact information had navigated to a warranty comparison website, proceeded to AHS’s site, and submitted an online form requesting a home warranty quote. The form included a clear disclosure immediately above the submit button, stating: “By clicking the button below, you consent to receive email at the email address you provided, as well as prerecorded messages, auto-dialed phone calls and text messages at the phone number you provided.” AHS further noted that when it called the number provided, the outgoing voicemail identified the phone as belonging to the plaintiff.

Adding intrigue, AHS characterized Van Elzen as a “frequent filer of TCPA lawsuits,” having brought twelve prior TCPA complaints—all apparently resolved by settlement. Forensic analysis of the plaintiff’s computer revealed that internet browsing history had been deleted from his laptop the same day he took his laptop to a local IT vendor and just six days before filing suit. Recoverable data showed visits to home-improvement lead-generation websites, including myhomequote.com, which lists AHS among its partners.

The Court’s Analysis of Consent: Written Agreement Not Required

On the consent question, the District Court rejected the plaintiff’s argument that AHS could not establish consent because it lacked a “signed, written agreement” as required by FCC implementing regulations. The District Court concluded that compliance with the E-SIGN Act was unnecessary because “the plain text of the TCPA does not require a written agreement in order for a consumer’s consent to receive texts to be valid.”

Citing the Eleventh Circuit’s decision in Insurance Marketing Coalition Limited v. FCC, 127 F.4th 303 (11th Cir. 2025), and the Supreme Court’s ruling in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), the District Court held that it was not bound by the FCC’s interpretation of the TCPA and should instead apply “ordinary principles of statutory interpretation.” Under those principles, and drawing on the common law meaning of “prior express consent,” the District Court found that “[a] consumer who provides his contact information and clicks on the word ‘submit’ on his computer screen, above which appears the message that, by doing so, ‘you consent to receive … text messages at the phone number you provided,’ is giving express consent to receiving such messages.”

However, the District Court could not grant summary judgment on this basis. Despite the suspicious circumstances including serial TCPA filings, deleted browser history, and visits to lead-generation websites, the plaintiff’s “testimony that he did not” submit the online form was sufficient to create a genuine factual dispute. The District Court noted that AHS’s evidence, while strong, did not amount to the kind of irrefutable video evidence that would permit a court to reject a nonmovant’s sworn testimony at summary judgment.

The Safe Harbor Defense: Where the Case Was Won

Although the consent question survived summary judgment, AHS prevailed on its alternative argument: the TCPA’s safe harbor defense. Under 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c)(2)(i), a defendant can avoid liability if it demonstrates that a violation resulted from error and that the company had implemented reasonable practices and procedures to prevent such errors.

The District Court found that AHS met this standard. AHS maintained a written Telemarketing DNC Policy that applied to all employees, subsidiaries, and third-party contractors. It used a sophisticated lead management system that blocked calls to numbers on its internal DNC lists and restricted calls to permissible times of day. AHS required employees to log call outcomes, undergo training on TCPA requirements, and ensure that third-party contractors were contractually bound to comply with the TCPA. Critically, AHS did not make “cold calls” to anyone who had not already expressed interest in its products, and it purchased access to the National DNC Registry from July 2024 through July 2025.

This showing was “sufficient to demonstrate compliance with the regulatory standards” and as a result, AHS was “not liable for its error (assuming it was error) in believing it had Plaintiff’s prior express consent to contact him.”

Takeaways for Marketers

This case is instructive on several fronts for companies that use text messages or phone calls as part of their marketing programs.

• The holding that the TCPA does not require a written agreement for prior express consent is a significant development, particularly in light of the Supreme Court’s and the Eleventh Circuit’s recent decisions limiting the FCC’s authority to layer additional restrictions onto the statutory text. Marketers should nonetheless continue to document consumer consent clearly and conspicuously.

• The decision also highlights the difficulty of proving consent at summary judgment. Despite strong circumstantial evidence (e.g., serial TCPA filings, deleted browser history on the eve of litigation, visits to lead-generation sites, and a voicemail matching the plaintiff’s identity) the plaintiff’s bare denial of submitting the online form was sufficient to create a genuine dispute of material fact. The District Court noted that nothing short of irrefutable evidence, such as a video recording, would permit it to reject a nonmovant’s sworn testimony. Companies should therefore not assume that a strong factual record on consent will be dispositive before trial, which makes the safe harbor defense all the more critical as a path to early resolution.

• Perhaps most importantly for day-to-day compliance, this case underscores the power of the safe harbor defense. Even where a company cannot conclusively prove that a consumer consented, a well-documented compliance program can provide a defense. The defendant won this case not because it proved consent but because it proved it had done everything reasonable to avoid TCPA violations.

• The decision is a reminder that the economics of TCPA class actions continue to drive litigation as potential exposure can reach hundreds of millions or even billions of dollars. The District Court’s pointed discussion of the “incentive structure” of TCPA class actions, along with its observation that the plaintiff had filed twelve prior TCPA suits, all resulting in settlements, reflects a judicial awareness that serial TCPA plaintiffs remain a reality of the landscape.

Companies should take this decision as a prompt to review their own TCPA compliance programs. Written policies, training protocols, internal DNC lists, sophisticated call-blocking software, and subscription to the National DNC Registry—all of the measures AHS had in place—are the building blocks of an effective safe harbor defense. As Van Elzen demonstrates, a strong compliance program can mean the difference between a potential class-wide damages award and summary judgment.