Antitrust Law Daily Wrap Up, PRIVACY—SDCal: Telephone Messages Offering Employment Opportunities Were Not Unsolicited Advertisements, Solicitations Under TCPA, (Apr 18, 2013)

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

Two pre-recorded messages placed by an automatic telephone dialing system to an individual’s home telephone number, promoting a recruiting webinar for sales of insurance policies and services, did not constitute unsolicited advertisements or solicitations within the meaning of the Telephone Consumer Protection Act, the federal district court in San Diego has ruled (Friedman v. Torchmark Corp., April 16, 2013, Gonzalez, I.) Thus, the individual’s TCPA action was dismissed for failure to state a claim. The individual was granted 21 days to file an amended complaint, addressing the pleading deficiencies.

In an action alleging violation of the federal Telephone Consumer Protection Act on behalf of himself and others, Jordan Friedman claimed that he received two pre-recorded messages on his home telephone, inviting him to contact Torchmark Corp. to attend a recruiting webinar regarding opportunities to sell health and other insurance policies. He alleged that the calls were placed using an "automatic telephone dialing system," employed an artificial or pre-recorded voice, and were not for emergency purposes. Friedman further alleged that he was not a customer of Torchmark’s; that he never provided the company with any personal information, including his telephone number; and that his home telephone number was registered with the National Do Not Call Registry.

Torchmark filed a motion to dismiss, arguing that Friedman failed to state a claim upon which relief can be granted.

The Telephone Consumer Protection Act prohibits the initiation of any telephone call to any residential telephone, using an artificial or prerecorded 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 Federal Communications Commission. The FCC has exempted from the general prohibitions calls that both do not include an unsolicited advertisement and do not constitute a telephone solicitation.

"Unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without prior express invitation or permission. "Telephone solicitation" is defined 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, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller had an established business relationship, or (C) by a tax exempt nonprofit organization."

Torchmark argued that Friedman failed to allege facts that constitute a violation of the TCPA because the pre-recorded calls made to his home were neither "unsolicited advertisements" nor "telephone solicitations." Friedman claimed that the calls were unsolicited and constituted marketing tools designed to make Torchmark money "in the long run."

The district court agreed with Torchmark, holding that an offer of employment does not materially advertise the commercial availability of any property goods or services within the ordinary meaning of those words in the TCPA. Torchmark’s messages were not aimed at encouraging Friedman to engage in future commercial transactions to purchase goods, the court found. Rather, the messages informed Friedman about a recruiting webinar that could have resulted in an opportunity to sell Torchmark’s goods or services, which is akin to an offer of employment.

The FCC’s 2005 Rules and Regulations distinguish between messages that encourage consumers to listen to free broadcasts and messages that encourage listeners to listen to programming for which they must pay, the court observed. The latter messages constitute unsolicited advertisements. The former messages do not.

In this instance, Friedman did not allege that the messages encouraged him to buy something. Rather, the messages encouraged him to attend a free recruiting webinar. Thus, they were not unsolicited advertisements within the 2005 Rules and Regulations.

Likewise, the messages were not telephone solicitations within the TCPA because they were not made for the purpose of encouraging the purchase of property, goods, or services, the court found.

The case is No. 12-CV-2837-IEG (BGS).

Attorneys: Todd M. Friedman (Law Offices of Todd M. Friedman, P.C.) for Jordan Friedman. Kent Russel Keller (Barger and Wolen LLP) for United American Insurance Company.

Companies: Torchmark Corp.; United American Insurance Company

Cases: Privacy CaliforniaNews