The purpose of a telephone solicitation, rather than its content, determines whether it is prohibited telemarketing under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. That is what the Eighth Circuit determined in a case arising from unsolicited telephone calls with prerecorded messages initiated for the purpose of promoting the motion picture, Last Ounce of Courage.
The Golan family, who were registered on federal and state “do not call” lists, received two such messages on their home telephone answering machine, each of which stated only: “Liberty. This is a public survey call. We may call back later.” The motion picture Last Ounce of Courage opened nationwide two days later.
Those behind the calls had created two prerecorded messages promoting the film. A shorter message, which the Golans received, was left on answering machines if a live person did not answer. The following longer message was played when a live person answered the call:
Hello, this is Governor Mike Huckabee, with a 45-second survey. Do you believe in American freedom and liberty? . . . Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values? I am an enthusiastic supporter of a new movie called Last Ounce of Courage. It is a film about faith, freedom, and taking a stand for American values. May I tell you more about why I recommend that you . . . see the movie Last Ounce of Courage? (Please note that only “yes” responses go to [the next segment of the script].)
Thank you for your interest. Last Ounce of Courage opens in theaters on Friday, September 14, . Last Ounce of Courage will inspire you and your loved ones to celebrate our nation and the sacrifices made to protect our liberties. It is a great story about taking a stand for religious freedom. The film is a timely reminder of all that is worth defending in our nation. Experience the Last Ounce of Courage trailer and see audience reactions at www.lastouncethemovie.com, that’s last ounce the movie dot com. Would you like to hear this information again? (Please note that only “yes” responses [repeat this segment of the script and] all other responses go to [the next segment of the script].)
Thank you for your answers so far. I have just [one] more question for demographic purposes. Do you own a smart phone?
Four million residential phone lines were called, and over one million live responses were detected. The Golans sought to certify a class of “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 recorded voice of Mike Huckabee to deliver a message as part of the above-mentioned campaign regarding the movie Last Ounce of Courage,” in violation of the TCPA.
The district court concluded the Golans had not suffered an injury in fact because the messages they received did not contain “an advertisement, telemarketing message, or telephone solicitation,” in violation of the TCPA, and that they were inadequate class representatives because unlike most putative class members who heard the longer message, the Golans heard only the shorter message on their answering machine and, therefore, were subject to a “unique defense” and could not establish typicality.
The Eighth Circuit reversed, and held that “while the content of the calls controlled whether they were ‘advertisements,’ their purpose controlled whether they were ‘telemarketing.'” It found that the context of the calls at issue indicated that they were initiated for the purpose of promoting Last Ounce of Courage. As a result, the calls qualified as “telemarketing” even though the messages never referenced the film, and the Golans, therefore, had alleged an injury in fact sufficient to confer Article III standing.
For the same reason—the purpose of the calls—the Eighth Circuit further held the that the Golans were not subject to a unique defense and had not suffered a different injury than class members who heard the entire message. What matters for all class members, the Eighth Circuit held, is that each call was initiated for the purpose of promoting Last Ounce of Courage.