The Telephone Consumer Protection Act (TCPA) prohibits companies from sending “telephone solicitations” in the form of marketing calls and texts to numbers on the National Do Not Call (DNC) Registry without the prior express written consent (PEWC) of the called party. However, what if the goods or services offered in those messages are without cost to the consumer? Do they still qualify as “solicitations” under the TCPA? A court in Wisconsin concluded that the answer may be no.
Unpacking the Case
Hulce v. Zipongo, Inc. concerned text messages sent to the Plaintiff by Zipongo, Inc., dba Foodsmart, which offers nutritional counseling and related services to its customers. Thanks to arrangements made with various insurance providers, Foodsmart’s services are offered to consumers covered under those plans at no cost to them. In this case, Foodsmart contracted with Chorus Community Health Plans (CCHP) to offer its services to CCHP members for a monthly fee for each eligible member. All costs were paid by CCHP. Eligible members received the benefits of this arrangement at no out-of-pocket cost to themselves- no fees, no copays, or coinsurance.
As a CCHP member, Plaintiff James Hulce received approximately 20 text messages and calls from Foodsmart between 2021 and 2022 which encouraged him to enroll in Foodsmart’s program. A typical text read: “October is the month of sweet treats & pumpkin spice everything. Make meeting with a personal dietitian part of your Fall routine & balance your blood sugar.”
Hulce, whose number was on the National DNC Registry, filed suit against Foodsmart, alleging that the calls and texts violated the TCPA because his number was on the DNC, and the company continued to contact him after he expressly requested that they refrain from doing so.
Foodsmart moved for summary judgment, arguing that the calls were not “telephone solicitations” as that term is used in the TCPA as they did not represent attempts to sell the Plaintiff anything, but rather to notify him about a free service available to him. The Plaintiff countered by arguing that the calls and messages encouraged the purchase of Foodsmart’s services, which would have been paid for by CCHP had he elected to receive them.
U.S. District Court Judge Lynn Adelman disagreed, concluding that communications can only fall under the TCPA as a “telephone solicitation” if their purpose is to encourage someone to make a purchase. According to the court, although the calls and texts the Plaintiff received encouraged him to utilize Foodsmart's services, they did not encourage him to purchase anything, because he could access the services without paying any money or its equivalent.
The only party that was purchasing the services offered by Foodsmart was CCHP. The court reasoned that although CCHP was effectively purchasing Foodsmart’s services on behalf of its members, the communications at issue in the case were not sent to encourage CCHP to make that purchase, because CCHP had already agreed to pay Foodsmart for any services provided to its members.
The Takeaway
In this case the court determined that the messages sent by Foodsmart did not encourage the Plaintiff to make any specific purchase, and therefore did not qualify as telephone solicitations.
However, the ruling in this case is unusual and should be narrowly construed, as courts will usually bend over backwards to justify the application of the TCPA, especially when considering a motion for summary judgment.
