CONSUMER LAW: Purpose of Call, Not Its Content, Is Determinative of TCPA Violation.

The Eighth Circuit Court of Appeals recently resuscitated a putative class action for violations of the Telephone Consumer Protection Act (TCPA) based on telephone calls related to the movie Last Ounce of Courage. In Golan v. Veritas Entertainment, LLC, — F.3d —, No. 14-2484 (8th Cir. June 8, 2015), the putative class members, who were registered on state and federal “do not call” registries, received automated telephone calls for a “survey” to promote the movie.

In 2012, Ron and Dorit Golan received two unsolicited, prerecorded messages on their home phone from defendants. The Golans were registered on federal and state “do not call” lists. Veritas Entertainment and its subsidiaries (collectively Veritas) hired AIC Communications to launch the telemarketing campaign to promote the film. Using the “celebrity voice” of Mike Huckabee, they agreed to play a prerecorded script to 4 million residential phone lines and 30 million cell phones, which in part asked recipients if they “believe in American freedom and liberty?” and if they would “like to see Hollywood respect and promote traditional American values?” by seeing a film that was a “timely reminder of all that is worth defending in our nation” and “a great story about taking a stand for religious freedom.” The prerecorded message further promoted the film, directed recipients to watch the trailer online, and provided the date of the opening night.

Relevant to the Golans, if a recipient did not answer the call, a message would be left on the answering machine, stating: “Liberty. This is a public survey call. We may call back later.” In total, AIC Communications called 4 million residential phone lines, and over 1 million live responses were detected, subjecting those recipients to the majority of the prerecorded script. The remaining recipients who did not answer the call, like the Golans, heard only the brief message recording.

The Golans filed a putative class action against Veritas, AIC Communications, and various other entities that participated in the campaign, alleging the phone calls violated the TCPA, 47 U.S.C. § 227(b)(1)(B). The district court dismissed, concluding that the Golans did not suffer an injury because none of the messages “contained an advertisement, telemarketing message, or telephone solicitation” in violation of the TCPA. The district court also concluded the Golans were inadequate class representatives because, unlike other members of the class, they only received the brief message recording. The Golans appealed.

The Eighth Circuit determined a consumer law violation had occurred, and reversed on both fronts. While the panel agreed with defendants that the messages were not “advertisements” under the TCPA because they did not involve sale of property, goods, or services, the panel nonetheless concluded the calls were “telemarketing” calls. The court held the purpose of the messages, rather than their content, that controls. Because the Defendants had the purpose of “initiation of a telephone call or message for the purpose of encouraging the purchase” of tickets to Last Ounce of Courage, the messages were made for a telemarketing purpose. See 47 C.F.R. § 64.1200(f)(12). Thus, “telemarketing” occurs under the TCPA “when the context of a call indicates that it was initiated and transmitted to a person for the purpose of promoting property, goods, or services.”

This case is important for its holding that under the TCPA, it is the intent behind the call, not its content, which determines whether a call is made for a “telemarketing” purpose. This will surely give telemarketers and phone marketing companies headaches for years to come. If you have any questions concerning this case, Fair Debt Collection Practices, or consumer law in general, contact Bob Kuderer or Tom Brock.