In Chesbro v. Best Buy Stores, L.P., — F.3d —-, 2012 WL 4902839 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that ‘robo-dialed’ informational calls can be telemarketing calls under the TCPA. The facts were as follows:
Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated telephone calls placed to his home by Best Buy violated the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, and the Washington Automatic Dialing and Announcing Device Act (“WADAD”), Wash. Rev.Code § 80.36.400. The district court granted summary judgment in Best Buy’s favor.
The Court of Appeals reversed, explaining:
Pursuant to its delegated authority, the FCC has exempted from the general prohibition on automated commercial calls those that both “do[ ] not include or introduce an unsolicited advertisement or constitute a telephone solicitation[,]” 47 C.F.R. § 64.1200(a)(2)(iii) (2011) (amended 2012), and do not adversely affect the privacy rights of the called party, see In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14095 ¶ 136, 2003 WL 21517853 (F.C.C. July 3, 2003) (“2003 Report and Order ”). The FCC has determined that so-called “dual purpose” calls, those with both a customer service or informational component as well as a marketing component, are prohibited. ¶ . . . We approach the problem with a measure of common sense. The robot-calls urged the listener to “redeem” his Reward Zone points, directed him to a website where he could further engage with the RZP, and thanked him for “shopping at Best Buy.” Re-deeming Reward Zone points required going to a Best Buy store and making further purchases of Best Buy’s goods. There was no other use for the Reward Zone points. Thus, the calls encouraged the listener to make future purchases at Best Buy. Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context. Any additional information provided in the calls does not inoculate them. See 2003 Report and Order ¶ 142. ¶ Any assertion that Chesbro either consented to receiving these communications or that the communications were not unsolicited is unpersuasive on this summary judgment record. Chesbro repeatedly and expressly asked not to be contacted. The calls violated the TCPA and its implementing regulations. ¶ Because the calls encouraged recipients to engage in future purchasing activity, they also constituted telemarketing under the DNC regulation. See 47 C.F.R. §§ 64.1200(d)(3), (f)(10)(2011).