Text messages sent to generate real estate sales leads did not qualify as telephone solicitations under the Telephone Consumer Protection Act’s (TCPA) regulations, according to a Texas federal court decision.
Plaintiff Terri Pepper alleged that she registered her cellphone with the National Do Not Call (DNC) Registry in December 2004. She also claimed that she never provided consent to receive calls or text messages from GVG Capital, but received multiple solicitations from the company from April through July 2022.
GVG moved to dismiss the action. It argued that as a real estate lead generator, it is in the business of acquiring consumer data to assist investors and realtors to buy and sell homes for profit. Via its website, “WeBuyHomes4Cash,” consumers who wish to contact GVG transmit their personal data and GVG sends the data to potential buyers.
“Telephone solicitations” are defined by the TCPA’s regulations 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.”
GVG told the court that it had not made a “telephone solicitation” to Pepper because its calls only offered to buy something—not sell something.
U.S. District Court Judge Lee H. Rosenthal agreed.
“Pepper does not allege that a consumer pays for any part of the services GVG Capital offers, whether through the payment of fees or by providing data at a discount,” the court wrote. “GVG Capital’s website is ‘WeBuyHomes4Cash,’ but the complaint does not allege that GVG Capital offers to purchase homes …. Pepper alleges only that GVG Capital seeks to acquire data on behalf of others seeking to purchase structured settlements. The allegations do not support an inference that GVG Capital is offering a service to Pepper in exchange for any payment.”
Pepper tried to hang her hat on a 2005 Federal Communications Commission (FCC) rejection of an exemption to the TCPA regulations advocated by the National Association of Realtors.
In its rejection, the FCC wrote, “[W]e clarify that a telephone solicitation would include calls by real estate agents to property owners for the purpose of offering their services to the owner.”
But the reference to the FCC communication did not help Pepper’s argument, the court said, as the agents referred to by the FCC “would presumably offer their services to the property owner with the expectation of compensation when the sale of the property closed.”
The court granted GVG’s motion to dismiss Pepper’s TCPA claim. The court also dismissed Pepper’s Texas state law claim with prejudice, ruling that Tex. Bus. & Com. Code Sec. 302.001(7) did not encompass text messages.
To read the memorandum and opinion in Pepper v. GVG Capital LLC, click here.
Why it matters
The defendant was able to successfully point to its business model as a real estate lead generator interested in acquiring consumer data to obtain dismissal in the TCPA suit, as its texts to the plaintiff did not constitute a “telephone solicitation” as defined by the statute’s regulations even though the text messages were sent to generate leads for profit.