Twelve-Word Message May Have Violated TCPA, 8th Circuit Rules
The 8th U.S. Circuit Court of Appeals ordered a lower court to hear a complaint that two unsolicited, prerecorded messages on a home phone line in 2012, promoting the film Last Ounce of Courage, were a violation of the Telephone…
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Consumer Protection Act. The message, recorded by former Arkansas Gov. Mike Huckabee, was really a survey rather than a telemarketing call, said the companies behind the calls. AIC Communications, which was behind the campaign, left two messages for the couple who filed the lawsuit, Ron and Dorit Golan, the Minneapolis-based appeals court said. The decision was written by Judge Diana Murphy. “The Golans did not answer the call, so they heard only the automated message: ‘Liberty. This is a public survey call. We may call back later,’” Murphy wrote, saying this happened twice. “In total, AIC Communications called 4 million residential phone lines, and over 1 million live responses were detected, subjecting those recipients to the majority of the prerecorded script,” the court said. “The remaining recipients who did not answer the call, like the Golans, heard only the brief message recording.” The lower court ruled the Golans hadn't suffered an injury because none of the messages they had received "contained an advertisement, telemarketing message, or telephone solicitation," in violation of the TCPA, the 8th Circuit said. “While the content of the calls controlled whether they were ‘advertisements,’ their purpose controlled whether they were ‘telemarketing,’” the court said. Defendants argue the court should consider only the content of the calls in determining whether they're "telemarketing” calls, the court said. “We refuse to do so. Neither the TCPA nor its implementing regulations ‘require an explicit mention of a good, product, or service’ where the implication of an improper purpose is ‘clear from the context.’" The FCC is slated to take up a declaratory ruling on the TCPA at its June 18 meeting (see 1505270048).