Like so much else here in TCPAWorld, the line between informational texts and telemarketing remains murky. This is especially the case when a consumer asks for information about a product or service, which a caller then supplies.
In this context the caller might be doing nothing more than providing information the consumer is seeking. For instance the FCC has found that where a caller responds in real time to a consumer’s request for information in response to a call-to-action display, such messages are “not telemarketing, but instead fulfillment of the consumer’s request to receive the text…,a[s] the consumer’s initiating text clearly constitutes consent to an informational reply in fulfillment of the consumer request.”
Nonetheless, courts will sometimes stumble over the informational/marketing distinction, especially at the pleadings stage where courts tend to give the benefit of the doubt to the Plaintiff. For instance, in Mantha v. Quotewizard, Civil No. 19-12235-LTS, 2020 U.S. Dist. LEXIS 45481 (D. Mass. March 16, 2020) the Court determined that the following messages were presumably telemarketing:
Hey, it’s Amanda following up. When’s a good day for us to talk Joe? You requested a quote on auto insurance. Message me if you’re still interested!
Hi this is Amanda! Are you looking for an accurate estimate, Joe? We can review your options together. Call me when you’re free, it won’t take long!
Note that these messages are written to appear personalized in nature and plainly appear to have been sent in response to the consumer’s initiation of a request for information (likely an online lead submission but those facts are not pleaded.) The Court, nonetheless, determined—reading all inferences in favor of the Plaintiff—that the messages advertise the availability of auto insurance and, therefore, qualify as a solicitation triggering scrutiny under the TCPA’s DNC provisions.
The Mantha case is not all bad news, however, as it did set a very high bar for pleading ATDS allegations, rejecting Plaintiff’s factual allegations of the use of a long code and mass blasted messages as insufficient to state a claim. Notably the Court did not specifically adopt any clear standard for ATDS functionalities, it simply rejected Plaintiff’s allegations as unduly conclusory.
At bottom this decision was entered only at the very outset of the case and as discovery becomes available we’d expect to see Defendant argue that, in context, the messages do not qualify as telemarketing. Nonetheless, best practice continues to be to treat outreach messages in response to consumer requests as marketing and to capture express written consent from the consumer wherever possible to assure those messages can be safely delivered (whatever technology you use for outreach.)
This is a tricky area and we’re always available to chat. In the meantime we’ll keep an eye on this one.