As one of the most experienced TCPA litigators in the nation I am commonly asked to provide compliance advice to my clients. This can be challenging because the answer to so many questions in TCPAWorld is “no one really knows for sure.”
Amongst the endless gray area we search for the meaning of what constitutes a telephone solicitation in the “dual purpose” setting—i.e. where one purpose for the call is informational and one purpose being a sales pitch of some kind.
The standards here are perfectly murky. On the one hand we know that just because a business is sending a message that does not mean that the message is always telemarketing; just because a business seeks to make money does not convert every communication with a consumer into an effort to hawk its goods. On the other hand we know that where “common sense” dictates the business was trying to make a sale with the specific message at issue then a seemingly informational message might still be deemed telemarketing.
If those lines weren’t already blurry enough, there is yet plenty of close-call territory in between. And then you get an extraordinary case that seems to transgress the outer limits of “common sense” completely. Here’s an example.
In Abdallah v. Fedex Corporate Servs., Case No. 16-cv-3967, 2019 U.S. Dist. LEXIS 158830 (N.D. Ill. Sept. 18, 2019) a well-known shipper of goods was caught in a TCPA lawsuit regarding so called “trace” calls—calls made to advise a sender that their package is tied up in customs and could not be delivered. The purpose of the calls—according to FedEx—was benevolent. A package cannot be delivered. The sender needs to know that. So what’s wrong with calling them to let them know?
Makes sense to me. Indeed, even the Court acknowledged that so called “trace” calls do serve a benefit—but bad facts make bad law. Get ready for the twist.
In Abdallah it was undisputed that a glitch in FedEx’s system resulted in the Plaintiff’s phone number being populated as a “home number” for hundreds of customers unrelated to the Plaintiff. (How does that that happen?) So rather than making trace calls to the senders of packages, FedEx was inadvertently contacting the Plaintiff over and over (and over 200 times) again.
Making matters worse, Plaintiff’s number was on the national DNC. So if the trace calls were deemed telephone solicitations, FedEx would have to answer for a TCPA violation. This is true regardless of whether or not the calls were made using a pre-recoded voice (nope) or an ATDS (apparently not.)
Zooming in on the DNC claim then, the issue—already referenced above—is whether these trace calls were selling anything. And here’s where the case again gets interesting. When a package cannot be delivered the sender essentially has two choices—allow it to be destroyed or pay FedEx to ship it back (unless the package could not be delivered due to FedEx’ error, in which case the return shipment is free.) Obviously the Plaintiff argued that because the calls might result in a return shipment—for which FedEx would be paid, but not much—the call had a “dual purpose” that included selling FedEx’ services. In furtherance of that position, Plaintiff introduced evidence that the trace agents were trained to discuss shipping options and costs with customers. Hmmmm.
While FedEx countered that the return shipping was merely a necessary part of completing an already-commenced shipping transaction and that it actually lost money on these returns, the Court was unmoved. Looking at the literal language of the statute, the calls did advertise the availability of a service and FedEx’s agents were trained to sell that service. Summary judgment denied.
Abdallah is a fascinating case that demonstrates the very outer limits of dual purpose calling. It seems clear that FedEx had no intention of using the trace calls to promote its services. It seems clear that it was attempting to assist existing customers to complete their previous shipping requests. But since part of the process of completing that request might include an additional sale, the Court found the calls might be a telephone solicitation.
Stepping back for a second, imagine how scary this is from a compliance perspective. You think your institution is making transnational calls to individuals for whom you have an established business relationship—so the DNC issues should be doubly irrelevant—and yet you get hooked on a wrong number suit based on “dual purpose” calling. Yikes. Just yikes.
Hang in there TCPAWorld. We’ll keep an eye on this one for you.