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.