“Do-Not-Call” Lists and Answering Machines

As is stated on its website, and pursuant to its authority under the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission established, together with the Federal Trade Commission (FTC), a national Do-Not-Call Registry. The registry is nationwide in scope, applies to all telemarketers (with the exception of certain non-profit organizations), and covers both interstate and intrastate telemarketing calls. Commercial telemarketers are not allowed to call you if your number is on the registry, subject to certain exceptions. As a result, consumers can, if they choose, reduce the number of unwanted phone calls to their homes. It does not cover the following: calls from organizations with which you have established a business relationship; calls for which you have given prior written permission; calls which are not commercial or do not include unsolicited advertisements; and calls by or on behalf of tax-exempt non-profit organizations. So what happens if you were contacted via an automated telephone recording device despite being registered on the federal or a state “do not call” list? That was the issue facing the United States Court of Appeals for the Eighth Circuit recently in Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015).

In Golan, the Golan’s received two unsolicited, prerecorded messages on their home telephone line. Each message stated: “Liberty. This is a public survey call. We may call back later.” If the Golans had answered their phone, they would have heard a scripted message with Mike Huckabee’s voice promoting and recommending that listeners go and see the movie “Last Ounce of Courage.” As a result of the two received messages only, the Golans initiated a putative class action against Veritas Entertainment and related companies alleging the defendants initiated the phone calls as part of a telemarketing campaign to promote the film “Last Ounce of Courage,” in violation of the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227, and the Missouri Do Not Call Law. The district court dismissed the complaint with prejudice, concluding that the Golans did not have standing and were inadequate class representatives. The district court specifically held that the Golans had not suffered an injury in fact because none of the messages they received “contained an advertisement, telemarketing message, or telephone solicitation” in violation of the TCPA.The district court also concluded that the Golans were inadequate class representatives because they only heard a partial message as opposed to those that heard the full message using Mike Huckabee’s voice and promoting and recommending the movie. The Golans challenged the finding that they had not suffered an injury in fact and their qualifications as class representatives and filed an appeal.

On appeal, the 8th Circuit reviewed the history of the TCPA and restated that injury in fact may be shown “solely by an invasion of a legal right that Congress created.” Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, Hammer v. Sam’s East, Inc., 754 F.3d 492, 498 (8th Cir. 2014). The 8th Circuit noted that the TCPA prohibits the initiation of “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party.” Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, 47 U.S.C. Sec. 227(b)(1)(B). Further, the court noted that Congress created a private right of action for enforcement of violations of the statute permitting recovery for “actual monetary loss from such a violation, [or] $500 in damages for each such violation, whichever is greater.” Id. Sec. 227(b)(3)(B). Exempted from this statutory framework are any artificial or prerecorded call which is “made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.” Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, 47 C.F.R. Sec. 64.1200(a)(3)(iii). The defendants argued that the case was properly dismissed because a court should only consider the content of the calls to determine if they are telemarketing and neither of the two messages contained an advertisement.

While agreeing with defendants that the calls were not an advertisement because they did not mention property, goods or services, the 8th Circuit, in reversing and remanding the case, held that the purpose of the calls controlled whether the calls were telemarketing. The implementing regulations for the TCPA define telemarketing “as the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, 47 C.F.R. Sec. 64.1200(f)(12). Refusing to look solely at the content of the calls, the 8th Circuit held that “Neither the TCPA nor its implementing regulations “require an explicit mention of a good, product, or service” where the implication of an improper purpose is “clear from the context.” Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). The 8th Circuit also noted that Congressional findings indicate that consumers consider pre-recorded messages to be a nuisance and an invasion of privacy and even when the intended content of the message is not conveyed, the intrusion into the home and the “seizure” of the phone line is the same. Given the Congressional findings, the 8th Circuit held that content of the message may be instructive, but it is not dispositive. Golan v. Veritas Entertainment, LLC., 788 F.3d 814 (8th Cir. 2015), citing, Solis v. Summit Contractors, Inc., 558 F.3d 815, 823-24 (8th Cir. 2009). Because the purpose of the calls were to promote “Last Ounce of Courage,” the 8th Circuit held that the district court erred in concluding the calls were exempt from regulation and that the Golans had failed to allege an injury in fact. The 8th Circuit also held that because the purpose of the calls were the same whether the Golans received the short message or the scripted message, the district court also erred in determining that the Golans were inadequate class representatives.

The Golan case is an important reminder that the Telephone Consumer Protection Act is broad in scope and companies need to have good procedures in place related to handling federal and state do not call lists so they can establish appropriate training needed to avoid unnecessary liability. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to john@jrjoneslaw.com.

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