Antitrust Law Daily Wrap Up, PRIVACY—S.D. Ala.: Prerecorded messages offering free concert tickets could constitute advertising under TCPA, (May 8, 2015)

By John W. Arden, J.D., LL.M.

A consumer’s claims that it received a number of unauthorized prerecorded telephone messages from a Biloxi, Mississippi resort casino—offering free concert tickets—plausibly alleged violations of the Telephone Consumer Protection Act (TCPA), according to the federal district court in Mobile, Alabama. The claims sufficiently alleged that the messages, sent to a cell phone, constituted “telemarketing” and “advertisements” (Bennett v. Boyd Biloxi, LLC, May 6, 2015, Steele, W.).

Jason Bennett alleged that he received several pre-recorded telephone messages from a Boyd resort casino, offering free tickets to a Kenny Wayne Shepherd Band concert; requiring him to call to reserve the tickets, using a “BConnect” card; and inviting him to view all offers on a website. He filed suit, alleging knowing and willing violations of the TCPA. The resort casino brought a motion to dismiss, arguing that the message was not “telemarketing” or an “advertisement” under the statute.

Congress delegated much authority for the implementation of the TCPA to the Federal Communications Commission (FCC), which issued regulations prohibiting covered entities from initiating any telephone call that “includes or introduces an advertisement or constitutes telemarketing using an automatic telephone dialing system or an artificial or prerecorded voice.”

The FCC defines “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services,” the court noted. The agency defines “telemarketing” as “the initiation of a telephone call for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . .”

The casino failed to address the express allegation that the calls met the FCC’s definition of “advertisement,” the court found. Moreover, the casino’s assertion that the calls “sought only to provide complimentary tickets” to Bennett was rejected by the court. The casino might have had an argument had the message merely notified Bennett that he was entitled to free concert tickets. However, the message continued, suggesting that Bennett visit a website to view other offers, which included discounts on room reservations, coupons for food purchases, and free play on the casino floor. The online offers were “offers to sell—not to give away with no strings attached—various goods or services.”

The question was whether one purpose of the calls was to encourage Bennett to buy goods or services in the future. Neither the failure to mention any particular good or service, nor the offer of free tickets was inconsistent with such a purpose, the court observed. The casino argued that dual purpose calls may not violate the TCPA unless (1) the call is made to a residential phone, rather than a cell phone; and (2) the objectionable purpose was “advertisement.” However, the court held that (1) the FCC regulations indicate that wireless subscribers should be afforded the same protection as wireline subscribers and (2) the casino failed to show as a matter of law that the calls did not constitute “advertisements” or “telemarketing.” Thus, the casino’s motion to dismiss was denied.

The case is Civil Action 14-0330-WS-M.

Attorneys: Earl P. Underwood, Jr. (Law Offices of Earl P. Underwood, Jr.) for Jason Bennett. Laura F. Ashley (Jones Walker, LLP) for Boyd Biloxi, LLC.

Companies: Boyd Biloxi, LLC

Cases: Advertising Privacy AlabamaNews