Burr & Forman

10.22.2012   |   Blog Articles, Do Not Call, Telemarketing Calls, Telephone Consumer Protection Act, Washington

US Court of Appeals for Ninth Circuit Reverses Summary Judgment Granted In Defendant’s Favor Concluding Call Was Dual Purpose Call

Chesbro v. Best Buy Stores, LP, No. 11-35784, 2012 WL 4902839 (9th Cir. Oct. 17, 2012) Plaintiff bought a computer from Defendant and signed up for a no interest payment plan to finance the purchase. When Plaintiff filled out the paperwork, he provided his contact information, including his phone number. The parties dispute whether Plaintiff signed up for Defendant’s reward program. According to Defendant, as a member of its reward plan, Plaintiff consented to Defendant contacting him with program-related communications. Plaintiff claims that while registered with the national “Do Not Call” list, he received several “robot” calls from Defendant, later complaining about one of the calls he received to the state Attorney General’s Office, a script of the call states: Hello, this is Andrea from Defendant calling for (Recipient’s first and last name) to remind you that your Reward Certificates are about to expire. (Certificate amount) dollars in Reward Certificates were mailed to you on (Mail date) and they will expire if not used by (Expiration date) and they will expire if not used by (Expiration Date). If you do not have your reward certificates, you can re-print them on line at myrewards.com. Thank you for shopping at Defendant. Defendant conceded making the call complained of but contended that it was a courtesy call, alerting Plaintiff to the looming expiration of reward certificates. Nonetheless, in response to the complaint, Defendant agreed to place Plaintiff on its do not call list. Seven months later, however, Plaintiff received another automated phone call from Defendant. In this call Defendant stated in part: This is a very important message regarding the Defendant’s Reward Zone program. We’re making some changes to increase security of the program and be more environmentally friendly. Please listen to the entire message and the go to MyRewardsZone.com for details and to update your membership. The following changes take effect October 31st, 2009: – First, to help reduce paper use, reward certificates will only be available by logging onto MyRwardsZone.com. – Second, reward certificates will no longer be transferable. – Lastly for the following three conditions, points will be cashed out to the $5 level and the reminding points will be forfeited: – You will need to provide an e-mail address at MyRewardsZone.com. Members who haven’t provided an e-mail address will no longer be eligible to participate in the program. – Reward Zone is becoming an annual program, which means points no longer roll over from year-to-year -You will need to make 1 purchase every 12 months to remain in the program. For full details and to make sure you’re ready for these changes, go to MyRewardsZone.com. After receiving this message, Plaintiff filed a class action complaint alleging that Defendant violated the TCPA and the Washington Automatic Dialing and Announcing Device Act (WADAD). Defendant removed the case to federal court, and filed a Motion for Judgment on the Pleadings, which the court converted into a motion for summary judgment and granted. Addressing Plaintiff’s TCPA claim, the court of appeals recognized that the TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or preformed voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order of the Commission under paragraph (2)(B). The court also recognized that pursuant to its delegated authority, the FCC exempted from the general prohibition on automated commercial calls those that both do not include or introduce an unsolicited advertisement or constitute a telephone solicitation and do not adversely affect privacy rights of the called party. Calls that serve a dual purpose with both an informational and marketing component are prohibited. The court also noted that the FCC has issued a regulation stating that persons or entities making calls for telemarketing purposes must honor a residential subscriber’s do-not-call request within a reasonable time. Defendant argued that the calls were purely informational courtesy calls to its reward members and that because the scripts did not specifically reference property, goods or services within the meaning of the TCPA, they did not violate the TCPA. Approaching the matter with what the court called “a measure of common sense,” it rejected the argument stating that the robot-calls urged the listener to ‘redeem’ his Reward Zone points, and directed him to a website where he could go to redeem rewards and thanked him for shopping with Defendant. The court noted that redeeming reward points required going to Defendant’s store and making further purchases of Defendant’s goods. There was no other use for the reward points. Thus, the caller was encouraged to make additional purchases. The court also noted that neither the statute nor regulation require an explicit mention of a good, pouch or service where the implication is Lear from the context. Additionally, because the calls encouraged recipients to engage in further purchasing activity, they also constituted telemarketing activity under the Do-Not-Call regulation. Concluding, the court stated that “[i]n sum, these calls were aimed at encouraging listeners to engage in future commercial transactions with [Defendant] to purchase its goods. They constituted unsolicited advertisements, telephone solicitations, and telemarketing, and were prohibited by the TCPA.”

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