In a universe of cases which seem to endlessly expand the scope of TCPA liability, a breath of fresh air and common sense recently emanated from the United States District Court for the Southern District of California.
Plaintiff’s TCPA Allegations
In Friedman v. Torchmark Corporation; United American Insurance Company, et. al., Plaintiff alleged that Defendant used and automatic telephone dialing system, utilizing an artificial or pre-recorded voice to invite Plaintiff to attend a “recruiting webinar wherein Plaintiff could learn about [Defendant’s’] products and services in order to sell said products and services to other Americans . . .”. Plaintiff further added that his telephone number had been registered with the National Do Not Call Registry since 2008, that he had no prior relationship with Defendant and had never provided Defendant with authorization to call him.
Plaintiff argued that the call was clearly an advertisement; that at the end of the webinar participants would receive an email allowing them to enter into a contract with Defendant; that the contract referenced fees that the individual would need to pay to allow them to sell in other states; and that they would be provided with client lists if they met a particular sales goal. As such, Plaintiff characterized the message as having been designed to “encourage individuals to invest money in [Defendant’s] brokerage services, [in order] to facilitate the sale of Defendant’s products and services.”
The Court Rejects Plaintiff’s Analysis
The Court held that the calls fell within the express FCC exemption where the calls “do not include or introduce an unsolicited advertisement or constitute a telephone solicitation”. The Court reasoned that a proper analysis must look to the purpose of the message, not the caller’s characterization of the call. The Court further noted that the calls were not unsolicited advertisements since this was merely an offer of employment and not “material advertising the commercial availability . . .of any property, goods or services”. Similarly, Defendant’s calls did not constitute a telephone solicitation slnce they were not made for the purpose of encouraging the purchase of property, goods, or services.
Take Away
While it is certainly refreshing to read an opinion which limits, rather than expands, the scope of the TCPA, marketers and advertisers should not take too much comfort in this decision. The FCC exemption relied upon is narrow in scope, and generally would not come into play in most other commercial advertising campaigns.
As always, if you are marketing products or services directly or indirectly via telemarketing, text message, email, or facsimile, you need to be working with experienced Internet marketing counsel on a regular basis. Working with counsel fully familiar with the intricacies and nuances of the TCPA, Internet practices and online marketing, to advise you on an ongoing basis, will go a long way toward making sure a TCPA Complaint, or regulatory action, never gets filed in the first place. For a brief description of how to handle a situation in which a TCPA action is brought against you, please see our post entitled, How to Defend a TCPA Lawsuit.
This topic should be of interest to any company or individual engaging in a commercial venture within the United States, especially those involved in online and offline marketing, text message marketing, telemarketing, and/or consumer product industries.
If you are interested in ensuring that you are compliant with current regulations or if you are facing an investigation from the FTC or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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