Can You Hear Me Now? Northern District of California Holds That The Entire Context Of A Prerecorded Message Must Be Considered In Determining Whether TCPA Coverage is Triggered

There’s not a whole lot of “common sense” in TCPAworld generally, but a ruling from last week—perhaps—holds the promise of a bit more sanity.  Last week, in Chinitz v. NRT West, Inc., Case No. 18-cv-06100, 2019 WL 720996 (N.D. Cal. Feb. 20, 2019), the Northern District of California held that the entire context behind a robocall must be considered in assessing the intent of the caller for purposes of determining whether a message constitutes telemarketing covered by the TCPA. 

The defendant in NRT West, Inc. (allegedly) used a rather clever strategy to determine whether someone would answer the phone. It used a pre-recorded voice message that sounded like a person experiencing a bad connection. If the call was connected, a live call would then follow with the defendant pitching its services.  The defendant also allegedly admitted that the purpose of the initial call was to “generate business.”

The defendant moved to dismiss plaintiff’s TCPA claim on a 12(b)(6) Motion, arguing that the Court should limit its purpose of the call analysis to the initial call itself.  The defendant contended that the first call did not require written consent because it did not contain any telemarketing content.  However, citing the FCC’s implementing regulations and the Ninth Circuit’s “common sense” approach to determining the purpose of a message, the court looked at the overall course of conduct and determined that the purpose of the initial call was to “introduce” an advertisement – made in the follow-up call – which triggered statutory coverage.

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