District Court (Cal.) Says Auto-Dialed Calls for Health Care Webinar Not Subject to TCPA Because Not a Prohibited Solicitation for Goods or Services

In Friedman v. Torchmark Corp., 2013 WL 1629084 (S.D.Cal. 2013), Judge Gonzalez found auto-dialed calls to a consumer about a “recruiting webinar” “wherein Plaintiff could learn about [Defendant’s] products and services in order to sell said products and services to other Americans who are in need of health or other similar insurance policies” was not a prohibited ‘unsolicited advertisement’ under the TCPA because the substance was in the nature of an offer of employment, not solicitation of goods or services.

‘[U]nsolicited advertisement’ means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission….” 47 U.S.C. § 227(a) (5). The term “telephone solicitation” is defined by the TCPA as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.” 47 U.S.C. § 227(a) (4). “Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.” Chesbro, 705 F.3d at 918. ¶ . . .Defendant’s calls also do not constitute telephone solicitations because they were not made for the purpose of encouraging the purchase of property, goods, or services. See 47 U.S.C. § 227(a)(4). The Ninth Circuit has construed the language to mean that the messages were made for the purpose of encouraging the listener to engage in future commercial transactions with the caller to purchase property, goods, or services. Chesbro, 705 F.3d at 919. In the instant case, Plaintiff only alleges that the messages invited Plaintiff to learn about Defendant’s products in order to potentially sell them to others. [Doc. No. 1, Compl. ¶ 10.]  ¶  Accordingly, as Plaintiff fails to allege that the messages constitute unsolicited advertisements or telephone solicitations, he is unable to state a claim under the TCPA.