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Context of Calls Without Content Did Not Establish Telemarketing Purpose

The title above surely encompasses the patently obvious – a call without any content cannot have been made for a telemarketing purpose. Yet can the “context surrounding” such “silent” calls establish that they embodied such a purpose and violated the Telephone Consumer Protection Act?

In Milton Schulz v. Infogroup, Inc., 2020 U.S. Dist. LEXIS 128908, Civil Action No. 3:19-CV-1620-N, United States District Court for the Northern District of Texas (July 21, 2020), the defendant was a data company that collected contact information for businesses and sold the data to third parties, such as government agencies and search engines. Among its collection “tools” were automated technologies to make “verification calls,” where business telephone numbers are dialed and then automatically disconnected once someone answers. Apparently, these attempts served to confirm that the contact information was accurate.

Mr. Schulz, a chiropractor by profession, received a number of these calls on his cellphone (which he publicly listed as the number for his business). When answering two of them he was immediately disconnected, without anyone speaking to him or any message playing. He made no claims that Infogroup left voicemails on the calls he did not answer. When Mr. Schulz called the number back to tell Infogroup to stop calling him, he heard an automated message promoting a free business-listing program, Express Update, that would ensure his information was accurate online. After further efforts to communicate “stop” to Infogroup, Mr. Schulz brought a TCPA action for the calls, alleging that they were made for a “telemarketing purpose.”

Since calls without content could not establish any such purpose, what about the “context surrounding” the calls? Mr. Schulz tried two theories to persuade the Court that he had met the “telemarketing purpose” threshold.

First, he claimed the calls were part of an effort to gain his participation in the Express Update program. But of course, the offending calls made no mention of that program. And Mr. Schulz only found out about it when he called Infogroup. His attempt to reverse engineer the TCPA was quickly dispelled by the Court noting that “…the TCPA applies to calls initiated by defendants…, not the inverse.” So “messages Schulz heard when he affirmatively contacted Infogroup are not TCPA violations….” Moreover, the Express Update program was free to business owners and there was no suggestion that the free program “served as a means of advertising to Schulz other Infogroup products or services for sale.”

The second theory was founded on the fact that Infogroup “gathers contact information for businesses…and provides it to other entities for profit.” This practice, Mr. Schulz claimed, constitutes a “‘mutually beneficial exchange’ – where valuable business information is exchanged for an updated business listing – and … [thus] the verification calls that effectuate this exchange…have a telemarking purpose.” Again, this was a bridge too far for Judge Godbey. This “expansive telemarketing definition” was “unsupported by the text” of the relevant regulation. Further, Mr. Schulz made no suggestion in his complaint that “Infogroup ultimately sought to sell or rent any service or product to Schulz or solicit and investment from him.”

Bottom line for the Court –“…[N]either the content of the calls…nor any alleged context surrounding those calls plausibly suggest that they were made with a telemarketing purpose.” Two theories to expand the parameters of “telemarketing” off the table here.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 206
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About this Author

Paul Besozzi Telecommunications Attorney Squire Patton Boggs Washington DC
Senior Partner

Paul Besozzi concentrates his practice in the wireless, broadband and emerging technology areas. His extensive experience of more than 30 years in the telecommunications field includes regulatory, transactional, legislative and litigation matters for clients ranging from wireless service and infrastructure providers to resellers of long-distance service, including cellular, personal communications services, specialized mobile radio, point-to-point microwave, advanced wireless services and other emerging wireless technologies.

Paul represents clients before the federal and state...

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