TCPA Violation Where Marketing the ‘One Purpose’ of Calls
By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation
On remand from the U.S. Court of Appeals, Eighth Circuit, a Missouri federal judge found that robocalls voiced by Mike Huckabee violated the Telephone Consumer Protection Act (TCPA) because they had the primary purpose of advertising a movie and not conducting a political survey.
Between Sept. 9 and Sept. 15, 2012, a marketing company made more than 3 million robocalls. Those who did not answer received prerecorded messages stating, “Liberty. This is a public survey call. We may call back later.”
If the call was answered, the script began: “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?”
Recipients who indicated “yes” heard more about the movie. “Thank you for your interest. ‘Last Ounce of Courage’ opens in theaters on Friday, September 11th. ‘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 www.lastouncethemovie.com.”
Ron and Dorit Golan—whose number was registered on both the National Do Not Call Registry and the Missouri No-Call list—received two of the robocall messages and filed suit against the marketing company, the film company behind the movie and various individuals, including Huckabee, alleging violations of the TCPA and Missouri’s No-Call law.
The district court granted the defendants’ motion to dismiss the suit, ruling that the Golans had not suffered an injury in fact because none of the messages they received contained an advertisement and they did not hear the entire script of the call. On appeal, the Eighth Circuit reversed.
On remand, U.S. District Court Judge E. Richard Webber first addressed the purpose of the telephone calls, making quick work of the defendants’ argument that the calls were not commercial but a political survey to collect data.
“Although Defendants assert there are disputed facts regarding the purpose of the telephone call, the Court need only read the script of the prerecorded message to determine these telephone calls are telemarketing,” the court wrote. “[T]here is no way to interpret this script as anything other than an attempt to convince consumers to go see the movie. This is telemarketing; the telephone calls are for the purpose of encouraging the purchase of a product, here, a movie.”
The defendants were similarly unable to persuade the court that the calls had a dual purpose of both advertisement and political survey. Not only has the Federal Communications Commission found that most dual-purpose calls constitute unsolicited advertisements, the court said that “it is clear from the script, there was only one purpose of these telephone calls, to market the movie.”
“However, even if Defendants’ argument was correct, the dominant purpose of the telephone calls is to market the movie, not to conduct a political survey,” Judge Webber said. “The focus of the telephone call is the movie and values represented in the movie, while only two questions, if any, can be considered a political survey. Because the telephone calls are telemarketing, they are subject to the TCPA.”
Turning to the issue of consent, the court disagreed that when consumers provided their phone number to the marketing company to receive calls about religious freedom, they consented to receiving calls about the movie.
“Providing a phone number to an entity does not mean the consumer has expressly consented to contact for any purpose; consent for one purpose does not equate to consent for all purposes,” the court wrote. “In this matter, Defendants assert they obtained consent to call the numbers about religious freedom or religious liberty. This is not consent to receive telephone calls advertising a movie, even if the movie, in some manner, relates to religious freedom. Consent for a political topic is not consent for an advertisement.”
In addition, the court wasn’t entirely confident that prior consent was obtained for telephone calls about religious freedom, as the only evidence the defendants provided was their own testimony.
Judge Webber also rejected the defendants’ attempt to split the calls into sections, arguing that only those who answered “yes” heard more about the movie, thereby demonstrating their consent. “Prior express consent does not include consent during the telephone call,” the court said. “Defendants must have obtained consent before placing the phone call, which did not happen here.”
Granting summary judgment in favor of the plaintiffs on the issues of consent and the purpose of the call, the court also said it would apply joint and several liability if the defendants were found liable.
To read the opinion in Golan v. Veritas Entertainment, LLC, click here.
Why it matters: Whether a communication is advertising is a subject of much debate. Here, the district court had little trouble determining that the purpose of the calls was to promote the movie, not conduct a political survey, finding no merit to the defendants’ fallback argument that the calls had a dual purpose. In addition, the court homed in on the importance of the scope of consent, finding that even if consumers had provided their phone numbers for the purpose of receiving calls about religious freedom or liberty, they had not consented to receiving calls about the movie.