Purpose of Call, Not Content, Can Trigger TCPA Liability


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March 2016 TCPA Compliance Monitoring Report

On June 8, 2015, the US Court of Appeals for the Eighth Circuit determined in Golan v. Veritas Entertainment, LLC, 788 F.3d 814 (8th Cir. 2015) that the purpose of a call, rather than its contents, is determinative of whether a call falls under the prohibitions on telemarketing in the Telephone Consumer Protection Act (TCPA or the Act).  In the Court’s view, the commercial purpose of a call could not be denied, even if there was no overt advertisement contained in the call.  Once a commercial purpose was found, the Court determined that the call constituted telemarketing and was not exempt from liability under the TCPA. 

The dispute in the case arose from Veritas Entertainment using a prerecorded voice to call the plaintiffs’ residential telephone without their consent to publicize the theatrical release of movie.  The plaintiffs did not answer the call and a short voice mail message was left for them.  The message said “Liberty.  This is a public survey call.  We may call back later.”  The TCPA prohibits prerecorded commercial calls to residential telephone numbers without the called parties consent if the calls contain advertisements or are deemed to be telemarketing.  Although the call did not constitute an “advertisement” under the TCPA, the Court found that, because the purpose of the call was to encourage the plaintiffs to see the movie, the call constituted “telemarketing” under the Act. 

Although the Golan decision was issued last summer, it is still resonating with telecommunications providers and telemarketers.  It serves as a reminder that careful preparation is needed to address TCPA regulations prior to initiating marketing campaigns using prerecorded messages. 

Join The CommLaw Group attorneys Nate Hardy and Seth Williams as they participate in a panel of key thought leaders and practitioners assembled by The Knowledge Group to discuss the importance of the Golan v. Veritas Entertainment decision, the fundamentals regarding the FCC’s TCPA regulation, and the latest on compliance issues arising from the ruling.  You can still register for this informative webcast. The webcast will start at 10 AM on March 31, 2016.

Key topics include:

  • Analyzing the Golan v. Veritas Entertainment Eighth Circuit Ruling
  • Overview of the FCC’s TCPA Regulations
  • Understanding the difference between an “advertisement” and “telemarketing” under the TCPA
  • Strategic Telemarketing Compliance
  • Overview of the FTC’s Telemarketing Sales Rule
  • Updates on the TCPA

If you have questions about your company’s compliance with the TCPA, please contact Jane Wagner at jlw@commlawgroup.com, Nate Hardy at njh@commlawgroup.com, or Seth Williams at slw@commlawgroup.com.

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