A recent decision found there’s a difference between advertising and telemarketing messages under the TCPA and that difference may have created a horror story for one movie promoter under the decision from the Eighth Circuit Court of Appeals.

“Liberty. This is a public survey call. We may call back later,” was the prerecorded message left twice on the voicemails of plaintiffs Ron and Dorit Golan. The calls, if answered, would have also played a 45-second scripted message that included a survey and promotional material about the movie. However, because the plaintiffs did not answer the calls, they only heard the short message regarding a public survey.  It appears the two messages really upset the Golans because it led them to file a putative class action against a whole slew of companies and individuals who they say made the message as part of a movie telemarketing scheme that violated the Telephone Consumer Protection Act.

Trial Court Pulls Curtain on Golans’ Case

It was revealed that the message was behind the promotion of a film Last Ounce of Courage. You might not be familiar with that movie, but don’t blame that on a lackluster promotion effort because, according to the trial court’s record, some four million calls were made to residential phone lines using the prerecorded message. That’s a lot of calls and a lot of TCPA liability if the calls were improper (starting at $500 per call and up to $1,500 per call if the calls were willful). The Golans moved to certify a class of persons that allegedly included “persons in the United States to whom [defendants] within four years of October 3, 2012, initiated one or more telephone calls to such persons’ residential telephone lines…” using the pre-recorded message.

The trial court dismissed the Golans’ TCPA claim finding they had not suffered an injury because none of the prerecorded messages “contained an advertisement, telemarketing message, or telephone solicitation.”

An appeal followed.

Appellate Court Reversal Focuses on ‘Purpose’ of  Message

The Eighth Circuit Court of Appeals reversed the trial court finding that it focused only on the content of the two messages left on the plaintiffs’ voicemail, and did not consider the purpose of the calls.

Absent a few exceptions, the TCPA prohibits 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.” See id. at § 227(b)(1)(B). Calls made for a commercial purpose may be exempted from the TCPA by Federal Communication Commission rulemaking if the calls do not “adversely affect the privacy rights that this section is intended to protect [and] do not include the transmission of any unsolicited advertisement” 47 U.S.C. § 227(b)(2)(B)(ii)(I)–(II). The FCC made such a rule, which exempted any artificial or prerecorded call “made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.” 47 C.F.R. § 64.1200(a)(3)(iii). The Eighth Circuit found that the FCC rule draws a distinction between a call made as an advertisement and one made for telemarketing.

Advertisement, Telemarketing Not the Same

Under the TCPA, an advertisement is a message that introduces “material advertising the commercial availability or quality of any property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). The Court agreed with the defendants that the pre-recorded message that stated, “Liberty. This is a public survey call. We may call back later,” was not an “advertisement,” even if made for a commercial purpose, because it did not include material promoting “the commercial availability or quality of any property, goods, or services.”

The Court’s inquiry did not end there. The plaintiffs contended that the message was “telemarketing.” The TCPA defines 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.” 47 C.F.R. § 64.1200(f)(12). And that is where the defendants’ marketing efforts flopped. Unlike “advertisements,” which look at the content of the call, the Eighth Circuit found that the FCC regulation looks to the purpose of the call to determine whether it is telemarketing under the TCPA.

Here, the Court concluded, the defendants’ purpose for making the calls was to promote the movie and therefore, while the calls were not advertising, they were telemarketing subject to the TCPA if they were made without the prior express written consent of the called party.

A copy of the opinion is available here: Link to Opinion.