The U.S. Court of Appeals for the Ninth Circuit On October 17,
2012 ruled that Best Buy Stores, L.P. violated the Telephone
Consumer Protection Act (TCPA) and Washington state law by failing
to obtain consumers' consent before placing prerecorded calls
urging the consumers to redeem their rewards points. The
ruling reversed a lower court decision that Best Buy's
"robocalls" did not violate the TCPA or a Washington
telemarketing statute.
The plaintiff filed a class action alleging that Best Buy sent
multiple prerecorded calls to its rewards program members providing
information about the program, advising members to update their
rewards program account information, and encouraging them to visit
Best Buy stores and redeem their rewards points. Best Buy
argued that the calls were informational in nature, as opposed to
unsolicited advertisements, and thus were not barred by the
TCPA. The company further argued that the plaintiff consented
to the rewards program privacy policy, which authorizes Best Buy to
contact members regarding the program.
The TCPA prohibits, with some exceptions, prerecorded and
artificial voice calls to residential telephone lines without the
prior express consent of the call recipient; Federal Communications
Commission (FCC) rules implementing the TCPA were amended in
February of this year to require prior express written
consent, but that requirement does not go into effect until October
16, 2013. Under the FCC's regulations, robocalls that do
not include an advertisement may be placed without the
recipient's prior consent.
Citing FCC policy regarding "dual purpose" calls (calls
with both advertising and informational content), the Ninth Circuit
found that Best Buy's prerecorded calls violated the TCPA
because the calls urged consumers to shop at Best Buy,
notwithstanding the informational components of the calls.
Noting that the plaintiff received robocalls from Best Buy after
repeatedly requesting not to receive such calls, the court further
determined that the plaintiff did not give prior consent to the
calls by agreeing to the rewards program privacy policy.
Click here to read the Ninth Circuit's decision.
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