WHAT IS INFORMATIONAL UNDER THE TCPA?: Court Rejects a Defendant’s Argument And there Is a Lesson Here

Add a comment

Happy Monday TCPAWorld.

One of the toughest things to determine in TCPAWorld, at times, is the difference between marketing and informational messages. This is especially true where a consumer requests information, or where a a message might be both informational in nature and also constitute marketing.

But getting it right is really important– marketing messages trigger a MUCH steeper consent requirement as well as certain content disclosures. And getting it wrong can be costly–$500.00 to $1,500.00 per call costly, under the TCPA’s famously high statutory damages.

The CFR definition isn’t entirely clear on the subject, although it is certainly broad– “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.”

You’ll notice the definition turns on the “purpose”–i.e. the intent of the caller–and not the content.

So a seemingly informational call–something like “interests rates just dropped!”–might be marketing where the call was made by a lender and the purpose was to promote a re-finance.

Still, TCPA Defendants will often argue that their messages are not marketing, even where they appear designed to solicit sales.

Take Zononi v. CHW Group, Inc. , Case No. 22-cv-14358 (S.D. Fl. March 7, 2023.) There the Defendant argued the following message was not marketing but informational in nature:

Make Sure Your Home is Covered!
Renew Today and Get 2 Months of Coverage at NO COST to You!
Renew Now and We’ll Give You Roof Coverage at NO EXTRA COST!

I suppose one could argue this is informational if you close your eyes and squint a bit, but I think most would agree a natural read of this text is to promote the sale of the Defendant’s warranty product.

On the other hand, the Court viewed the text messages to the Plaintiff as demonstrating an effort to have the Plaintiff renew coverage–as such the Court determined an EBR was to be presumed unless the Plaintiff alleged facts dispelling the existence of such a relationship. So the TCPA claim was dismissed on an alternate ground.

There is another piece of this case-involving the FTSA–that is troubling. But I will cover that a bit later in the day.

 

Categories:

Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

Leave a Reply