A radio station that made prerecorded telephone calls to consumers did not violate the Telephone Consumer Protection Act, the Sixth Circuit has ruled.
A consumer filed a putative class action suit after receiving a prerecorded telemarketing call from a Clear Channel radio station that delivered the following message:
“Hi, this is Al ‘Bernie’ Bernstein from 106.7 Lite FM. In case your favorite station went away, I want to take just a minute to remind you about the best variety of yesterday and today at 106.7. Motown, classic 70s from James Taylor, Elton, and Carole King; it’s all here. Each weekday, we kick off the workday with an hour of continuous, commercial-free music. This week, when the music stops at 9:20, be the tenth caller at 1-800-222-1067. Tell us the name of the Motown song we played during that hour, and you’ll win one thousand dollars. Easy money. And the best variety from 106.7 Lite FM.”
Mark Leyse alleged that the call violated the TCPA.
Clear Channel moved to dismiss the suit, arguing that the call was exempt under a Federal Communications Commission provision for “hybrid” calls that both announced a contest and generally promoted the station. Leyse contended that the exemption was limited to calls promoting only a specific broadcast, but the Sixth Circuit said it included calls promoting a broadcast and the radio station generally, such as the call at issue.
“Although a promotion for a broadcast is distinguishable from a promotion for a station, this distinction is trivial. Broadcasts appear on stations and by promoting a broadcast, the promoters are also impliedly promoting the station on which that broadcast appears. But even if the distinction Leyse draws were meaningful, the key principle underlying the exemption extends to calls promoting specific broadcasts or a radio station generally or both,” the panel wrote.
The court also determined that the FCC regulation was not arbitrary and capricious and therefore subject to deference. Congress directed the agency to issue regulations governing exemptions under the TCPA, and the agency promulgated its rules through notice-and-comment rulemaking.
“Despite Leyse’s many attempts to show that the FCC’s decision is arbitrary and capricious, the record here does not support that finding. In reaching its exemption decision, the FCC considered the impact on privacy rights,” the court explained.
“For example, the FCC noted that ‘Few commenters in this proceeding described either receiving such messages or that they were particularly problematic.’ And the fact that [the plaintiff] and other commenters disagree with the result the FCC reached does not detract from the deference accorded to the agency because the FCC considered and rejected these perspectives during its rulemaking.”
To read the Sixth Circuit’s opinion in Leyse v. Clear Channel, click here.
Why it matters: With potential damages of $500 per violation, class actions alleging violations of the Telephone Consumer Protection Act are increasingly common. Unless covered by one of the FCC’s exemptions under the Act, marketers should use care to ensure they are in compliance with the statute.