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Pre-recorded calls don’t violate TCPA

Caller ‘reasonably relied’ on consent from prior owner of number

The Telephone Consumer Protection Act implicitly provides a “reasonable reliance” defense for companies accused of making unwanted pre-recorded solicitation calls, a U.S. District Court judge has determined.

Defendant Boston Scientific Corp., a medical device manufacturer that partnered with health clinics to put on educational seminars for patients, placed pre-recorded calls about a local seminar to a clinic patient who had consented to such calls. As it turned out, the patient’s number had been reassigned to plaintiff Steven Sandoe, a non-patient who had not consented to the calls. Sandoe then brought a putative class action under the TCPA.

Boston Scientific argued it was entitled to reasonably rely on the list of numbers the clinics had provided.

Judge Nathaniel M. Gorton in Massachusetts agreed.

“Although the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the [Federal Communications Commission’s] order emphasizing that the TCPA does not require the impossible of callers,” Gorton said, granting the defendant’s motion for summary judgment. “This Court declines to contravene the FCC’s regulation by interpreting the TCPA as requiring callers to do what the competing expert reports in this case demonstrate is either impossible, or at least highly unreliable.”

Characterizing the calls as health care messages and not solicitations, the judge also rejected the plaintiff’s claims that the calls violated Do-Not-Call Registry provisions of the TCPA.

The 15-page decision is Sandoe v. Boston Scientific Corporation.

‘Split in authority’

Plaintiff’s counsel Jason R.J. Campbell of Charlestown said only that he and his client were disappointed with the ruling. One of the defendant’s attorneys, Troy K. Lieberman of Boston, declined to comment.

atchison-1“The takeaway is that it’s very important to look at the scripts you use when making these calls, whether from a solicitation or non-solicitation standpoint, and be very clear about the language.”

— James G. Atchison, Providence

But James G. Atchison of Providence, who defends TCPA claims, said the decision is helpful given the lack of a definitive ruling by the 1st U.S. Circuit Court of Appeals recognizing a reasonable reliance defense.

“It’s something courts are essentially reading into the statute in reliance on an FCC order that [the FCC] is not going to demand the impossible of callers,” said Atchison, who also practices in Massachusetts. “This decision shows there’s at least a split in authority for reading such an exception into the statute, which telemarketing companies can rely on when defending these actions and which hopefully will lead to more definitive rulings in the future.”

Atchison also said that while Boston Scientific’s goal clearly was to market and sell products, it was able to protect itself by doing so through clinics and making its pitch an educational seminar.

“While there’s a possibility Boston Scientific would increase their sales from patients knowing about their products, the court just looked at the text of the calls that were made,” he said. “The takeaway is that it’s very important to look at the scripts you use when making these calls, whether from a solicitation or non-solicitation standpoint, and be very clear about the language.”

Los Angeles attorney Eric J. Troutman, who has a national TCPA defense practice, said there should be no dispute as to the existence of a reasonable reliance defense under the statute.

“Some District Courts have looked at the statute and said that because there’s no reasonable reliance in the statute itself, there’s no defense,” Troutman said. “But that completely overlooks the 2015 FCC ruling specifically articulating that a caller has the right to reasonably rely on the consent of a former subscriber to a telephone line. In this context, that should be treated as binding.”

However, Matthew P. McCue of Natick, who represents plaintiffs in TCPA cases, said there is no basis under the statute — intended to be interpreted broadly to protect consumers from unwanted calls — for a reasonable reliance defense.

“Consent does not transfer from one owner of a number to another,” McCue said. “From a consumer’s point of view, how would they ever know exactly who the prior owner gave consent to call? The court looked at this from the perspective of the business and not the consumer.”

McCue also questioned the judge’s suggestion that it would be “impossible” for Boston Scientific to comply with the TCPA under the circumstances, pointing out that the company could have checked to see if any of the 200,000 numbers it called were on the Do-Not-Call Registry, or used a live person to place calls for consumers not on the registry.

It also could have mailed or emailed patients to invite them to seminars, he said.

Meanwhile, McCue disputed Gorton’s conclusion that the calls were not marketing-related.

“The FCC has long held that an overt sales pitch is not required on the call,” he said. “All that is required is that a purpose of the call — [it] need not even be the sole purpose — is to sell goods or services. The court itself acknowledged that physicians were encouraged to discuss treatment options sold by Boston Scientific at the seminars themselves. The call had a marketing purpose.”

Kevin V.K. Crick, a Boston attorney who represents plaintiffs, said the ruling provides useful guidance going forward.

“In future cases … it will be important for plaintiffs to try to display to a court that a defendant’s reliance on information about who a particular phone number is allegedly assigned to was unreasonable before the defendant called the phone number,” he said, pointing to technology and services that currently are or will soon be available to businesses to fully investigate such matters before making telephone solicitation and debt collection calls.

TCPA claim

Between 2014 and 2018, defendant Boston Scientific partnered with a number of pain management clinics to host seminars aimed at educating patients about treatment options for chronic pain.

A Boston Scientific representative was typically present at each seminar, but a physician from the host clinic presented his or her own content. The defendant encouraged physicians to discuss treatment options, including Boston Scientific products, but did not sell its products at the seminars.

During the years in question, the defendant offered to make invitation calls for the seminars on the clinics’ behalf, partnering with vendors to transmit pre-recorded voice messages.

The clinics created the list of invitees; Boston Scientific apparently did not verify that the messages were actually transmitted to the patients the clinics intended to reach.

In June and July 2018, Boston Scientific placed two calls on behalf of Spine Works Institute, a Boston Scientific partner, inviting patient “S.B.” to a Spine Works seminar.

Though S.B. had consented for Spine Works to contact her by phone, her number had been reassigned to plaintiff Sandoe at the time the calls were made.

Sandoe claimed he called Spine Works after the first call, asking it to stop calling, though his phone records apparently did not show any such calls. The number was also registered with the DNC Registry before it was reassigned to Sandoe, who never registered the number himself.

The plaintiff brought a putative class action against the defendant under the TCPA in August 2018. In October 2019, the federal District Court denied the plaintiff’s motion to certify the class. In the meantime, the defendant moved for summary judgment.

Reasonable reliance

Pointing to FCC statements that the TCPA did not demand the “impossible” of callers, Gorton rejected Sandoe’s argument that reasonable reliance is not a valid defense under the statute.

Here, Gorton said, Boston Scientific did indeed reasonably rely on its partners to provide an invitee list of patients who had provided contact information for health-care-related events and services.

Additionally, Gorton rejected the plaintiff’s contention that the calls constituted solicitations illegally made to a number on the DNC Registry.

“[T]he messages received by plaintiff neither implicitly nor explicitly mention Boston Scientific’s products or services,” Gorton wrote. “The purpose of each call was to invite the intended recipient to a Seminar for pain management at which Boston Scientific products were sometimes mentioned but were not for sale.”

Because the messages were health care messages and not solicitations, he said, it was unnecessary to decide whether someone reassigned a number already listed on the registry could sue under the TCPA.

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