The Southern District of Alabama recently clarified that the treatment of offers for free goods and services is the same whether the call is made to a wireless number or a residential number and illustrated how a call offering free goods or services can become a “dual purpose” call. Bennett v. Boyd Biloxi, LLC (S.D. Ala. May 6, 2015).
In Bennett, the plaintiff alleged that he had received a number of pre-recorded, autodialed messages on his cell phone offering him free concert tickets from the defendant, a casino operator. Defendant argued that all such calls to landlines and cellphones were purely informational in nature
According to the plaintiff, the pre-recorded messages stated the following:
Hello, this is IP Casino, Resort and Spa calling to invite you to enjoy 2 free tickets to see the Kenny Wayne Shepherd Band. If you wish to opt out of future calls, please dial 877-388-5***and mention opt-out number 5***. Join us and enjoy 2 free tickets to see the Kenny Wayne Shepherd Band on Saturday, July 5th. Tickets are limited so reserve your tickets today. To take advantage of this great offer now, please call 1-888-946-2*** and have your BConnected card ready to reserve your ticket. Or visit BConnected online to view all of your offers. Thank you and we look forward to your visit here at IP Casino, Resort and Spa
While the pre-recorded message did not explicitly describe or attempt to sell other goods or services, it invited the plaintiff to visit the defendant’s website “to view all of your offers.” Such offers allegedly offered discounts on room reservations and food.
In denying the defendant’s motion to dismiss and argument that the FCC’s prohibition of dual purpose calls does not extend to cellular phones, the court ruled that the pre-recorded messages were dual purpose in nature, constituting both advertising and telemarketing. In doing so, the court held that “wireless subscribers should be afforded the same protections as wireline subscribers.” “The defendant’s calls patently encouraged the plaintiff to visit [defendant’s] site and see what goods and services the defendant had for sale.” As with a call to a landline, “any customer service or informational aspect to the defendant’s notification that the plaintiff was entitled to free show tickets does not insulate the defendant from liability for any advertisement or telemarketing contained elsewhere in the same message.”
The court stated that the casino may have had a valid defense if the pre-recorded messages had stopped after informing the plaintiff he was entitled to free tickets. By encouraging plaintiff to visit defendant’s website to view all of the offers, the calls transformed themselves from informational into dual purpose because, as the court stated, at least some of the online offers were offers to sell, not to give away with no strings attached, various goods and services.
The court relied upon the Federal Communications Commission’s explanation that “offers for free goods and services that are part of an overall marketing campaign to sell property, goods, or services” are advertisements under the TCPA and FCC regulations. The FCC also has explained that informational calls that are motivated in part by the intent to sell property, goods, or services are “in most instances” advertisements under the TCPA.
Consult with an experienced telemarketing lawyer to review scripts for TCPA compliance. This matter should be of interest to company placing information calls with an autodialer, including corporate counsel. If you are interested in reviewing your telemarketing practices and consumer contact protocols, please contact the author at (212) 756-8777, rnewman@hinchnewman.com or www.hinchnewman.com.
Information conveyed in this article is provided for information purposes only and does not constitute, nor should it be relied upon as legal advice. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this article without seeking the advice of an attorney
