Do Not Call Keeps Ringing
The Telephone Consumer Protection Act (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."
Ed note: This post originally appeared on Seattle Copyright Watch: Insight and Commentary on Copyright and other Intellectual Property topics and, occasionally, Dogs.
The Telephone Consumer Protection Act (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.” 47 U.S.C. § 227(b)(1)(B). Ron and Dorit Golan were registered on both federal and Missouri State do not call lists. The Golans received two unsolicited, prerecorded messages about the movie Last Ounce of Courage on their home phone line in September 2012. The Golans did not answer the call, so they received a truncated version of the message and not the longer version of the message that was played to people who answered the call. erThe film’s owners arranged for a telemarketing campaign, in which 4 million residential phone lines were called. The Golans brought a class action lawsuit against those involved in the telemarketing campaign, from Veritas Entertainment, LLC and Veritas Management, LLC, (Veritas), which owned interests in the film, to Mike Huckabee, the “celebrity voice” on the recorded message.
The district court ruled 1) the Golans did not suffer an injury in fact because the messages they received did not contain an advertisement or solicitation in violation of the TCPA and 2) that because the Golans received the shorter version of the recorded message, their claims were not typical of the putative class members and they were therefore inadequate class representatives. The district court dismissed the case. The Eighth Circuit reversed and remanded.
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Standing Requirement
Article III standing requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability. Injury in fact may be shown solely by the invasion of a legal right that Congress created.
(Opinion pdf pages 5 – 6).
The Eighth Circuit indicated that Congress created a private right of action under the TCPA and examined whether the Golans alleged an injury sufficient to give them standing.
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Congress enacted the TCPA to protect consumers from the proliferation of intrusive telemarketing calls to their homes. Although most states had enacted legislation restricting telemarketing, members of Congress believed that federal law was necessary because telemarketers could evade state law through interstate operations. The TCPA thus prohibits any person within the United States, or any person outside the United States if the recipient is within the United States, from using prerecorded messages to call residential phone lines without prior consent, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph 2(B). Paragraph 2(B) provides that the Federal Communications Commission (FCC) may exempt noncommercial calls, and commercial calls if they do not adversely affect the privacy rights that this section is intended to protect and do not include the transmission of any unsolicited advertisement. The FCC has subsequently exempted from regulation any artificial or prerecorded call which is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.
(Opinion pdf pages 6 – 7).
The TCPA and its regulations prohibits calls to residential phone lines that are either advertisements or telemarketing calls.
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The Golans received the message “Liberty. This is a public survey call. We may call back later.” The Eighth Circuit agreed with the defendants that the message was not an advertisement prohibited by the TCPA because it did not mention property, goods or services.
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Telemarketing
The content of the calls controls whether the calls were advertisements, but the purpose of the calls controls whether the calls were telemarketing calls.
Telemarketing is defined 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. A person or entity initiates a telephone call when it takes the steps necessary to physically place the call.
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. Congressional findings indicate that consumers consider prerecorded calls, regardless of the content of the message, to be a nuisance and an invasion of privacy. Even when the intended content of a message is not conveyed, the intrusion into the home and the ‘seizure’ of the phone line is the same.
(Opinion pdf pages 7 – 8).
The Eight Circuit ruled that the district court erred in classifying the calls as exempt and ruling that the Golans did not allege an injury in fact.
Here, the context of the calls indicates that they were initiated for the purpose of promoting Last Ounce of Courage. The Golans alleged that Leininger and Griffin (film owners) hired Joseph of AIC Communications to promote the film as part of a nationwide telemarketing campaign. Although the campaign appeared to survey whether recipients had ‘traditional American values,’ Griffin and Joseph were more concerned with getting viewers to see Last Ounce of Courage than gathering information about them. AIC Communications thus called the Golans and 4 million other phone lines by using a prerecorded script that promoted the film as a timely reminder of all that is worth defending in our nation and a great story about taking a stand for religious freedom. The script explained where recipients could watch the trailer and when the film would open. Since the calls were initiated and transmitted to the Golans in order to promote Last Ounce of Courage, they qualified as ‘telemarketing’ even though the messages never referenced the film. The district court therefore erred in concluding that the calls were exempt from regulation and that the Golans had failed to allege an injury in fact sufficient to confer Article III standing.
(Opinion pdf pages 8 – 9).
The Eighth Circuit also ruled that the district court erred when it ruled that the Golans were inadequate class representatives. “What matters for all class members, including the Golans, is that each call was initiated for the purpose of promoting Last Ounce of Courage.” (Opinion pdf page 10).
This case is Golan v. Veritas Entertainment, LLC, No. 14-2484, Eighth Circuit Court of Appeals.
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