Hi, TCPAWorld! Kelly Sandberg here, with a new case on how the safe harbor provision applies in TCPA lawsuits and what policies and procedures courts are looking to when determining liability.
In David Van Elzen v. American Home Shield Corporation, Plaintiff David Van Elzen sued American Home Shield Corporation (“AHS”) under the TCPA for texting him about a home warranty. David Van Elzen v. American Home Shield Corporation, No. 24-C-1206, 2026 WL 1078771 (E.D. Wis. Apr. 21, 2026). Ultimately, the United States District Court for the Eastern District of Wisconsin granted summary judgment in favor of AHS, finding no liability because AHS had established that their business implemented reasonable practices and procedures to prevent TCPA violations.
On August 24, 2024, Elzen received a text from AHS thanking him for requesting information about AHS’s home warranties and providing him with further contact information about the company. The bottom of this text provided instructions to “Reply, ‘Remove’ to opt out” of the messaging. However, Elzen did not choose to opt out of the messaging. Elzen later received additional messages from AHS that also included opt out instructions, but he did not choose to opt out.
Elzen contended he never visited AHS’s website or provided his express consent. However, AHS stated they received Elzen’s name, address, and phone number via an online submission through their website, requesting to be contacted with more information about AHS’s home warranty products.
AHS alleged that on or about August 24, 2024, someone had navigated a warranty comparison website that ranked different home warranties and allowed visitors to click on those ranked company websites. The person then went to AHS’s website and submitted an online form with Elzen’s contact information, requesting more information about home warranties. This form on AHS’s website contained language alerting the person that by clicking the submission form, they were providing consent to receive communications from AHS.
During discovery, the forensic analyst who examined Elzen’s electronic devices found that Elzen had visited the websites “myhomequote.com”, “myhome.quote” and “homebuddy.com” a few days prior to receiving the messages from AHS. Each of these websites offered services similar in nature to AHS. AHS was also listed as a partner on “myhome.quote’s” website. This browsing information was gathered from Elzen’s deleted browsing history that appeared to have been deleted on or around September 16, 2024, right before he filed suit on September 22, 2024.
AHS moved for summary judgment, arguing that the undisputed evidence established Elzen’s provision of express consent and that even if they did not have Elzen’s consent, their policies satisfied a safe harbor provision under the TCPA regulations.
The court denied AHS’s summary judgement motion on the grounds that Elzen had provided his express consent because the forensic analysis failed to provide evidence that Elzen did in fact visit AHS’s specific website.
However, the court made further determination as to AHS’s argument that a safe harbor provision applied.
Under 47 U.S.C. § 227(C)(5), “[i]t shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations under this subsection. Additionally, under 47 C.F.R § 64.1200(c)(2)(i), a would-be violator can avoid liability of it can demonstrate that the violation is the result of error and that as part of its routine business practice, it implemented various procedures to avoid such errors.
The court found that AHS complied with these standards because: AHS had a written Telemarketing DNC Policy that outlined compliance procedures to comply with the National Do-Not-Call rules; their policy was to only call or text consumers who have provided them with consent; they maintained their own DNC list for persons who opt out of messaging; they used a sophisticated software program to avoid mistakes; they maintained a Training Manual with a detailed policy that applied to all employees, subsidiaries and contracted companies; they provided “rigorous training” of their policies for all of their telemarketing employees; and they purchased access to the National DNC registry from July 2024 to July 2025.
Overall, because the court determined AHS had sufficiently demonstrated substantial compliance in their routine business practice and that any violation of the TCPA would have been the result of an error, the court granted summary judgement.
The takeaway here is that while safe harbor provisions are not absolute, they can limit a company’s liability. This requires a substantial showing that a violation was the result of an error, and that a company has implemented reasonable practices and procedures to effectively prevent TCPA violations.