Andrew Hoffman contributed to this post.
What makes an automated call “telemarketing” versus “informational”? It might be less than you think.
In a recent ruling out of the Ninth Circuit, Chesbro v. Best Buy Stores, L.P., the Court has ruled that certain calls are telemarketing calls subject to the TCPA, even if the calls do not explicitly encourage a purchase.
In this case, the plaintiff purchased a computer from Best Buy and (at least allegedly) signed up for its rewards program. Thereafter, Best Buy autodialed the plaintiff’s home with prerecorded messages about the program. The calls, as described in the Court’s opinion, include reminders to use rewards before they expire as well as a call to alert the plaintiff to changes in the rewards program.
“Hello, this is Andrea from Best Buy Reward Zone calling for (Recipient’s first and last name) to remind you that your Reward Certificates are about to expire. (Certificate amount) dollars in Reward Certificates were mailed to you on (Mail date) and they will expire if not used by (Expiration Date). If you do not have your reward certificates, you can re-print them online at myrewardzone.com. Thank you for shopping at Best Buy.”
Plaintiff claims he attempted to opt-out several times but continued to receive calls.
Best Buy asserted that the messages were purely informational messages about the service and not commercial or marketing calls.
The trial court granted summary judgment for Best Buy, but the Ninth Circuit reversed, and concluded that the calls were telemarketing calls, subject to the TCPA:
“The robot-calls urged the listener to ‘redeem’ his Reward Zone points, directed him to a website where he could further engage with the RZP, and thanked him for ‘shopping at Best Buy.’ Redeeming Reward Zone points required going to a Best Buy store and making further purchases of Best Buy’s goods. There was no other use for the Reward Zone points. Thus, the calls encouraged the listener to make future purchases at Best Buy. Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.”
Thus, the Court found the calls regarding redeeming existing rewards, with no explicit encouragement to make additional purchases, to be telemarketing calls. It is unclear from the decision if the Court would have found the call regarding updates to the rewards program, standing alone, to be a violation.
Accordingly, any company that currently relies upon its calls being “informational” and outside the requirements of the TCPA should reconfirm that position in light of this case, particularly as this ruling may embolden other class action counsel to test the limits of the TCPA’s exception for informational calls.