SET FREE: Calls About Free Services Are Not Telephone Solicitations Under TCPA DNC Rules Says Appellate Court

Really interesting and important one for folks today.

Is a call or text made to a consumer to advise them of a FREE service a telephone solicitation under the TCPA’s DNC rules?

This issue arises quite often in the context of insurance. A policyholder may be entitled to certain benefits they are not taking advantage of and the insurer– hoping, perhaps, to encourage preventative treatment or a healthy lifestyle–sends along a text message notifying the policyholder of the free service.

But obviously somebody is paying for the service. So is the fact that the consumer is being encouraged to use a service somebody else is paying for sufficient to make the message a solicitation?

That was the question in Zipongo v. Hulce 2025 WL 829603 (7th Cir. 2025). There a nutritional consultant company sent text messages to the Plaintiff advising of a free service available through a state and Medicaid funded healthcare plan.

So whereas the service was free to Plaintiff, the Defendant would be paid for the service, albeit through a third-party.

The Plaintiff argued these were solicitations since he was being encouraged to buy something the sender of the text messages would be paid for.

But the defense argued otherwise. In their view the Plaintiff was not being encouraged to purchase or rent anything– the service was free to him.

The lower court had entered summary judgment in favor of the defendant and the Seventh Circuit agreed. In its view the definition of a telephone solicitation required that the recipient of the call must be encouraged to buy or rent something– not to take advantage of a free service:

We therefore conclude that “telephone solicitation” means the initiation of a call or message for the purpose of persuading or urging someone to pay for a service. Our conclusion carries an important implication with it: the person or entity the caller intends to encourage is also the party who makes the purchasing decision. That is, we agree with the district court that we cannot separate the encouragement element from the purchasing element.

Yeah, I know that was a bit wordy but trust me– it means what I said it means. 🙂

The Court goes on to make it crystal clear why Plaintiff had not received a solicitation:

Indeed, while Foodsmart’s purpose was to encourage Hulce to use its services, its purpose could not have been to encourage Hulce to pay for services that were free to him. Nor could Foodsmart’s purpose have been to encourage CCHP to do anything. Although the communications may have resulted in CCHP ultimately paying Foodsmart, the communications and any encouragement within them were solely directed at Hulce.

So the calls to Plaintiff did not encourage him to pay for anything. And the fact that CCHP had to pay for something as a result of the calls doesn’t matter– Defendant did not call CCHP.

Pretty fun, no?

Net result– an appellate court ruling determining calls that do not encourage a purchase or rental by the call recipient do not constitute a solicitation for the TCPA’s DNC rules.

Remember, however, that if the calls or texts are made using an ATDS or pre-recorded/artificial/AI voice technology they are actionable regardless!

To make sure you’re on top of all the latest TCPA developments be sure to request your FREE copy of the 2025 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance!

WE DID IT!: WE UPDATED OUT 2025 TCPA ANNUAL REVIEW AND YOU SIMPLY MUST HAVE ONE RIGHT NOW!

Chat soon.