Automated phone calls from Best Buy Stores, urging a customer to update his
rewards program account information, were unsolicited advertisements that
violated the Telephone Consumer Protection Act, the U.S. Court of Appeals for
the Ninth Circuit held Oct. 17, reversing
the districtcourt (Chesbro v. Best Buy Stores
LP, 9th Cir., No. 11-35784, reversed and remanded 10/17/12).
The court concluded that informational content included in the messages did
not take them outside the reach of the TCPA. Because the messages encouraged
recipients to engage in future purchasing activity, they also constituted
telemarketing under do-not-call regulations. The customer was on the federal
do-not-call list and had repeatedly asked Best Buy not to contact him.
“We approach the problem with a measure of common sense[,]” the court wrote.
Although the messages did not explicitly mention a good or product, they
encouraged customers to visit Best Buy stores and redeem rewards points.
“Neither the statute nor the regulations require an explicit mention of a
good, product, or service where the implication is clear from the context[,]”
the court added.
The TCPA, at 47 U.S.C. §227(b)(1)(B), makes it unlawful to initiate any
telephone call using a prerecorded message without the prior express consent of
the called party. The statute provides that the Federal Communications
Commission may exempt certain commercial calls from the TCPA, provided the calls
do not adversely affect the privacy rights the statute was intended to protect
and do not include unsolicited advertisements. The statute defines unsolicited
ads as including “material advertising the commercial availability or quality of
any property, goods, or services,” 47 U.S.C. §227(a)(5).
The FCC has exempted automated commercial calls that do not introduce or
include unsolicited advertisements. However, the FCC has determined that “dual
purpose” calls--calls that contain both information and an ad--do not fall
within the exemption.
With that in mind, the court concluded that Best Buy's automated calls fell
within the scope of the TCPA. The calls, among other things, urged the listener
to redeem his or her reward points, directed the listener to a website to
further engage with the rewards program, and thanked listeners for shopping at
Redeeming rewards points required shopping at Best Buy, the court found. The
points served no other purpose. Thus, the calls encouraged listeners to make
future purchases and constituted ads.
Best Buy argued that customers consented to receiving ads when they signed up
for the rewards program. The court disagreed.
The plaintiff repeatedly asked that Best Buy not contact him. As a result,
the calls violated the TCPA and the do-not-call regulations.
Kimberlee L. Gunning and Beth Ellen Terrell, of Terrell Marshall Daudt &
Willie PLLC, in Seattle; and Kim Williams and Rob Williamson, of Williamson
& Williams, in Bainbridge Island, Wash., represented the plaintiff. Aimee K.
Decker and K. Michael Fandel, of Graham & Dunn PC, in Seattle; and Anne M.
Lockner, David Christian Lundsgaard, Denise Rahne, and Michael D. Reif, of
Robins Kaplan Miller & Ciresi LLP, in Minneapolis, represented Best Buy
Full text of the court's opinion is available at http://pub.bna.com/eclr/11cv35784_101712.pdf.