Does the TCPA Prohibit Recorded Calls That Don’t Include a Sales Pitch?

As detailed in innumerable posts on this blog, the Telephone Consumer Protection Act of 1991 (TCPA) prohibits “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.”  There are several exceptions to this general prohibition, and one of the more significant ones covers calls that do not include a solicitation to purchase goods or services, unless the consumer has provided prior express consent.    This exception is reflected in the FTC’s Telemarketing Sales Rule, as well as the FCC’s exemption for calls that do not adversely affect the consumer’s privacy rights and do not include any “unsolicited advertisement.”  The TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.”

These apparently clear exceptions might lead you to conclude that sending a recorded call to your own customer that includes an important reminder and no sales pitch would be perfectly legal, especially if the customer has given his or her consent to receive such a call.   Well, guess again.

In the recent case of Chesbro v. Best Buy Stores, LP- yet another class action spawned by the TCPA revolved around calls associated with Best Buy’s Reward Zone program, which rewards customers with rebate certificates that expire after a set period of time.  The plaintiff enrolled in the Reward Zone program (RZP), and in doing so agreed to accept recorded messages from Best Buy.  He then sued Best Buy after receiving several recorded calls from the company regarding the RZP program.  At least one message reminded him to use his certificates before they expired, and another informed him about changes to the RZP.   The plaintiff claimed that he requested to be placed on Best Buy’s internal Do-Not-Call list, but nevertheless continued to receive calls.

Best Buy argued that the calls did not constitute unsolicited advertisements because they: (1) they were informational in nature; (2) they did not include a sales pitch or reference any good, product, or service; and (3) the plaintiff consented to receive them.  The Court disagreed, and held that recorded calls need not explicitly mention a good, product, or service to violate the TCPA if they encourage the listener to make future purchases.  The Court noted that an informational call that includes a marketing component is still a prohibited “dual purpose” call.   Finally, the Court rejected the consent argument, as he “repeatedly and expressly asked not to be contacted.”

This ruling leaves companies in a quandary.  Apparently, a call violates the TCPA if it somehow encourages a customer to make a future purchase, but what does that mean exactly?  What about a dentist calling his customer to let him know that she missed her teeth whitening appointment and to contact the dentist to reschedule.  Presumably, the dentist is going to charge for his services, so is he not then encouraging his customer to make a future purchase?  What if the customer consents, but then argues that he changed his mind somewhere along the line?

However this plays out, it sends a chilling message to any company that wants to maintain contact with its customer.  The fictional dentist in the preceding example might want to consider using the following script:  “This is not a sales call. The purpose of this call is to remind you that you missed your appointment.   This call is not to be interpreted as a solicitation to make any purchase whatsoever.  In fact, do not purchase anything from us, ever again.  Because you have received this call, your business is no longer welcome.  If you no longer want to receive recorded messages from us, press the number 1 key now.  Have a nice day.”






Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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