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As our readers are aware, the Telephone Consumer Protection Act ("TCPA") prohibits businesses from delivering certain types of unsolicited calls and text messages to consumers. Traditionally, courts have understood this prohibition to cover classic TCPA telemarketing activity involving promotions of commercial products and services. However, recent court decisions have drawn important distinctions where communications are not intended to sell products or services, but rather to inquire as to whether properties are for sale.
How Does the TCPA Define Telemarketing and Solicitation?
The typical TCPA lawsuit alleges that defendant initiated a telemarketing call to: 1) a residential line using an artificial or prerecorded voice without the prior express written consent of the called party; and/or 2) a telephone number listed on the National Do Not Call ("DNC") registry. The TCPA defines telemarketing 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." The term "telephone solicitation" is defined under the TCPA 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 . . . ."
The purpose of the message – whether the business is encouraging called parties to make a purchase, versus offering to purchase something from them – has emerged as legally significant. Several courts, referencing statutory definitions, have held that communications expressing an interest in buying recipients' homes or other assets do not constitute TCPA marketing solicitations. Accordingly, such communications may fall outside the scope of the TCPA's artificial or prerecorded voice and National DNC prohibitions.
Recent Court Decisions on This Topic
In Hunsinger v. Offer, LLC, the defendant sent plaintiff unsolicited text messages expressing interest in purchasing his house. The plaintiff brought TCPA telemarketing claims, alleging that the subject texts were prohibited "telephone solicitations" that violate National DNC provisions. The United States District Court for the Northern District of Texas disagreed. The Court applied the TCPA's statutory definition, holding that messages offering to buy property from the recipient do not encourage the recipient to "purchase, rent, or invest in goods or services." Because the defendant in Hunsinger was proposing to acquire property, the Court concluded that such communications fall outside the scope of the TCPA's telemarketing prohibitions.
In Jance v. Homerun Offer LLC, the United States District Court for the District of Arizona reached a similar conclusion. In Jance, the defendant delivered multiple calls and text messages asking whether plaintiff was interested in selling his home. Importantly, the messages did not offer a service, nor did they seek to induce the plaintiff to purchase anything from the defendant. As such, the Court held that the subject communications were not "telephone solicitations" or "telemarketing" within the meaning of the TCPA.
Businesses Should Carefully Evaluate All Available TCPA Defenses
The Hunsinger and Jance decisions offer a strong defensive framework for any entity whose communications involve purchase inquiries, rather than attempts to market products or services to consumers. While this line of decisions is promising, defendants should not assume that all purchase inquiries are automatically exempt from TCPA marketing liability. Courts closely examine the content and intent of the applicable challenged communications. For example, where messages appear to be more than simple purchase inquiries – such as when a real estate wholesaler is effectively advertising for a third party or attempting to assign contracts for profit – courts may still deem such communications to constitute "telemarketing."
Against this backdrop, businesses facing TCPA exposure should continually evaluate all available defenses to seemingly routine TCPA class action lawsuits. Even scrutinizing statutory definitions may yield previously unavailable avenues of defense. As ever, it is important that businesses consult experienced telemarketing counsel familiar with asserting all viable defenses. Over the past several years, the attorneys at Klein Moynihan Turco have defended countless TCPA claims on behalf of the telemarketing industry.
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