District Court (Cal.) Says Health Insurer’s Informational Call to Patient Was Not Telemarketing, Requiring Written Consent under TCPA

In Smith v. Blue Shield of California Life & Health Ins. Co., 2017 WL 167451, at *7–10 (C.D.Cal., 2017), Judge Carney dismissed a TCPA claim against Blue Shield who placed informational calls to its patient.

The Ninth Circuit has stated that courts should evaluate the content of purported telemarketing “with a measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). On the one hand, “explicit mention of a good, product, or service [is not necessary] where the implication is clear from the context” and additional, informative content does not inoculate telemarketing advertisements. Id. On the other, “messages ‘whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements.’ ” Aderhold v. car2go N.A. LLC, No. 14-35208, 2016 WL 4709873, at *1 (9th Cir. Sept. 9, 2016) (unpublished) (quoting In re Rules & Regs. Implementing the Tel. Consum. Prot. Act of 1991, 21 FCC Rcd. 3787, 3812 ¶ 49 (Apr. 6, 2006)). Blue Shield argues that because the call was purely informational it was not an advertisement or telemarketing call. (Mot. at 16–19.) Plaintiff disagrees, based on the fact that the calls were (1) discussed as part of a retention strategy, (2) written by the marketing team, and (3) initially drafted to link to Blue Shield’s renewal page and included “We want to keep you covered.” (Dkt. 68 at 16–17.)  Simply stated, the text of Blue Shield’s telephone call is informational. It notified recipients that they should have received information about changes to their insurance plan, encouraged them to seek out information about their plan by examining the information packet and visiting Blue Shield’s website, and directed them to call the member service number (as opposed to the sales department) to resolve any questions or issues. (Dkt. 46-5 ¶ 10.) This content is virtually identical to the CMS template letters insurers such as Blue Shield send to customers regarding renewal. Both messages emphasize the importance of their contents, highlight that customers’ insurance plans and benefits had changed, inform recipients that there are alternative plans available, provide the insurer’s contact information, and convey the time-sensitivity of the information and the opportunity to renew or modify one’s insurance coverage. The only additional content in the calls versus the mailing references the mailing—informing recipients that (1) Blue Shield mailed them information and (2) what to do if they had not yet received their mailing—and is similarly informational. Cf. Chesbro, 705 F.3d at 918 (“Thus, the calls encouraged the listener to make future purchases at Best Buy…. Any additional information provided in the calls does not inoculate them.”). . .  Plaintiff’s only argument based on the actual text of the call is that urging recipients to visit Blue Shield’s website transformed the call into telemarketing. (Dkt. 68 at 17.) Blue Shield’s internal discussions regarding inclusion of the website in the call’s script demonstrate that the goal was to direct customers to Blue Shield’s member renewal tool, which allowed consumers to compare their current plan with various Blue Shield alternatives. (See Dkt. 61 Ex. 14.) However, the renewal tool was purely informational—if customers “wanted to switch plans or purchase a plan [they] would have to access a different portion of the website.” (Dkt. 69 at 7 n.4.) The mere fact that parts of Blue Shield’s website contains the capability of allowing consumers to engage in commerce does not transform any message including its homepage into telemarketing or advertising. See Aderhold, No. C13-489RAJ, 2014 WL 794802, at *9 (“Attempting to connect the car2go text [Plaintiff] received to the sort of telemarketing call that is at the heart of the TCPA, he argues that because the text directed him to place an activation code into an email that ultimately connected to the car2go website which contains promotions for the car2go service, it was a telemarketing text…. It is manifestly insufficient that Mr. Aderhold could, after choices of his own making, divert himself from the registration process to car2go marketing.”).  Plaintiff argues that various contextual facts make the call telemarketing or advertising. First, she argues that even if the text is facially informative, Blue Shield’s overarching incentive to retain customers and receive premium payments creates a clear implication of encouraging purchase of a good, product, or service. (See Dkt. 68 at 17; cf. Chesbro, 705 F.3d 918 (“Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.”).) However, that purpose is simply too attenuated to give rise to a clear, unequivocal implication of advertising. See Daniel, No. 15-CV-03546-WHO, 2015 WL 7454260, at *4 (“To the extent that it could be reasonably inferred based on context or otherwise that the text’s purpose was also to “encourage future purchases at Flame Broiler,” that purpose is simply too attenuated to make the text telemarketing …. Certainly, the text was designed to allow Daniel to complete the registration process, which could result in an increase in the chances of Daniel making future purchases at Flame Broiler or other participants in the Five Stars program. But Daniel cites no authority indicating that this degree of connection between communication and purchase is sufficient to transform a text of the sort he received into a telemarketing message.”). Were this Court to hold otherwise, it would transform practically all communication from any entity that is financially motivated and exchanges goods or services for money into telemarketing or advertising, which would contravene the delineated definitions of telemarketing and advertising in 47 C.F.R. § 64.1200(f)(1),(12). . .  Evaluating Blue Shield’s call with a measure of common sense, the Court must conclude that the call is not telemarketing or advertisement within the meaning of 47 C.F.R. § 64.1200(f)(1),(12). It makes no sense to the Court that a single call tracking Blue Shield’s mandatory communications regarding insurance enrollment and renewal would expose Blue Shield to millions of dollars of liability under the TCPA.