No Telemarketing: Advertising a Free Service Isn’t Advertising At All Under the TCPA

One of the hottest areas for debate in a TCPAWorld filled with hot areas of debate is the line between telemarketing and informational calling. It has long been recognized that there is no such thing as a free lunch and faxes/phone calls advertising free seminars or dinners designed to attract new business by creating a market for a sales pitch have been found to constitute telemarketing. But what about a call to advise about a service that is actually offered for free as part of an insurance benefit?

In Savett v. Anthem, Inc., CASE NO. 1:18-CV-274, 2019 U.S. Dist. LEXIS 190955 (N.D. Oh. Nov. 4, 2019) the court granted summary judgment to a Defendant in a case involving calls to a landline. Under current FCC rules, pre-recorded calls to landlines are exempt from the TCPA if they are made with a commercial purpose and do not contain telemarketing. The calls at issue in Savett fall into three categories: i) flu shot reminders; ii) e-mail verification calls; and iii) calls advising of the availability of certain “telehealth” services.

The flu shot reminder and e-mail verification calls were easy enough for the court to deal with. Defendant is not in the business of selling flu shots and many courts have found such calls to be healthcare-related messages exempt from express consent requirements. E-mail verification calls are information gathering efforts that are, once again, exempt from the TCPA in this context.

But the calls “advertising” the availability of telehealth services are tricky. On the one hand, the calls plainly advertise the availability of a good or service. On the other hand the service is free. But might it be free in the way of all those “free lunches” we’ve learned to avoid?

In weighing the issue the Court found dispositive that the members had already paid for the service by virtue of having enrolled for membership in the plan. The calls, therefore, were not soliciting business but, rather, empowering individuals to take advantage of a service they had essentially already paid for. In the court’s view, to hold otherwise  “would transform practically all communication from any entity that is financially motivated and exchanges good or services for money into telemarking or advertising” and contravene the definitions in the regulations.” And we wouldn’t want that.

Notably, because the calls were categorically exempt from the TCPA the Defendant did not need to show consent for the calls to be placed. But do keep in mind—these are landline calls folks; such a rule does not apply to calls to cell phones. Don’t get confused.

Happy Tuesday TCPAWorld.

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