District Court (Cal.) Says Pre-Recorded Calls Were “Marketing”

In Chinitz v. NRT W., Inc., No. 18-cv-06100-NC, 2019 U.S. Dist. LEXIS 27134 (N.D. Cal. Feb. 20, 2019), Judge Cousins denied a motion to dismiss a TCPA class action that asserted that pre-recorded calls violated the TCPA.

Applying the prerecorded message rule turns on the purpose of the message, “not on the caller’s characterization of the call.” Chesbro, 705 F.3d at 918 (quoting In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14098 ¶ 141, 2003 WL 21517853 (F.C.C. July 3, 2003) (“2003 Report and Order”). In Chesbro, the Ninth Circuit approached the rule “with a measure of common sense.” Id. The court rejected arguments that robocalls urging listeners to “redeem” their rewards points on a website were merely informational. Id. Because listeners were required to visit a store and make further purchases in order to redeem their points, the calls could only be characterized as advertisements. Id. Likewise, the Ninth Circuit held that the caller could not inoculate itself from the TCPA by omitting reference to a specific good, product, or service. See id. (“Neither the statute nor regulations require an explicit mention of a good, product, or service where the implication is clear from the context.”). [*6]  Courts in this district have adopted a similar common-sense approach. In Panacci v. A1 Solar Power, Inc., No. 15-cv-0532-JCS, 2015 U.S. Dist. LEXIS 77294, 2015 WL 3750112, at *5-6 (N.D. Cal. June 15, 2015), the district court held that a referral company violated the TCPA even though it only sought to refer the called party to another entity. Because the TCPA defined telephone solicitations as “any call ‘for the purpose of encouraging [a] purchase,” it necessarily included calls to encourage purchases with a different entity or in the future. Id. (quoting 47 U.S.C. § 227(a) (emphasis added)); see also 2003 Report and Order at 14040 ¶ 142. Here, Chinitz challenges NRT’s prerecorded message stating that there was a bad connection and someone would call him back. See FAC ¶ 25. This prerecorded message is prohibited under the TCPA. Chinitz alleged that each time he received NRT’s prerecorded message, a live person would follow up on behalf of NRT to attempt to sell its real estate brokerage services. See id. ¶¶ 25, 26. He also alleged that an agent of NRT admitted to placing the robocalls in order to generate business. Id. ¶ 31. From these facts, the Court can plausibly infer that the purpose of the calls was to encourage the purchase of NRT’s services, i.e., telemarketing. NRT argues that [*7]  the Court should limit its purpose-of-the-call analysis to the call itself. The Court disagrees. In its implementing regulations, the FCC clarified that the TCPA reached prerecorded messages that “includes or introduces an advertisement or constitutes telemarketing.” 47 C.F.R. § 64.1200(a)(2) (emphasis added). This language makes clear that the TCPA reaches prerecorded messages that do not constitute advertisements or telemarketing themselves. Rather, the entire context of the robocall, including messages conveyed after the robocall, must be considered. Here, there is no dispute that the live follow-up call by NRT constitutes telemarketing. Because the prerecorded message always precedes the live follow-up call, it “introduces” the telemarketing call and is prohibited under the TCPA. Moreover, common sense dictates that NRT’s robocall falls within the purview of the TCPA. See Chesbro, 705 F.3d at 918 (“We approach the problem with a measure of common sense.”). The prerecorded message is designed to determine whether someone would answer the phone. The sole purpose of such a message is to allow NRT to pitch its brokerage services to the called party. See FAC ¶ 31 (quoting NRT representative as asking “How else are we supposed to generate [*8]  business?”). Thus, the prerecorded message was made “for the purpose of encouraging the purchase” of NRT’s brokerage services. 47 C.F.R. § 64.1200(f)(12). Accordingly, the Court DENIES NRT’s motion to dismiss Chinitz’s third claim under the TCPA. Because Chinitz does not oppose NRT’s motion to dismiss his UCL claim, the Court GRANTS