Are calls not selling anything actionable under the TCPA? Asked in a different way, Do non-solicitation phone calls mean you have to change your phone number if Walmart wants to keep calling you?
- Peter Schneider
- Mar 27, 2024
- 8 min read
Updated: Apr 14
I discussed earlier how real estate companies often argue they are exempt from telemarketing laws if they are calling to try and buy your house. They have had some success with that argument in the past, and while some courts are showing a shift in their thinking, it is far from universal.
For example, see this MSJ opinion just handed down in Hulce v Zipongo. Zipongo called and text messaged Hulce for services that, while free to Hulce through his insurance company, they had a profit motive in providing to Hulce.
Hulce alleged Zipongo called and texted his number about 20 times enough those it was on the national do-not-call registry, and they continued to call even after he expressly asked them to stop contacting him.
The core of Z's motion for summary judgement was that the
"[the] calls and messages did not violate the TCPA’s do-not-call regulation because that regulation applies only to “telephone solicitations” as defined in the TCPA. Here, Foodsmart contends that the calls and messages were not telephone solicitations because their purpose was not to sell plaintiff anything but to notify him about a free service available through his health plan."
The court did the old thinking analysis that allowed real estate companies to keep calling, asking to buy real estate
"Although the purpose of the communications was to encourage plaintiff to utilize Foodsmart’s services, it does not follow that their purpose was to encourage him to purchase Foodsmart’s services. Indeed, plaintiff concedes that the purpose of the calls was not to encourage him to purchase Foodsmart’s services, since the services were available to him for free . . . while it is true that the statute does not specifically state that the purpose of the communication must be to encourage the recipient to make a purchase, the statute still requires the communication’s purpose to be to encourage someone to make a purchase . . . The only other potential purchaser was CCHP. While CCHP’s paying Foodsmart to provide services to its members might reasonably be characterized as a “purchase” of those services on behalf of its members, the purpose of the communications could not have been to encourage CCHP to make that purchase . . . Moreover, the communications were not targeted at CCHP in any way. The calls did not, for example, ask plaintiff to encourage CCHP to add Foodsmart’s services to his health plan. Thus, the communications did not encourage anyone to make a purchase."
It is disappointing to see this line of reasoning because as the Ninth Circuit pointed out in Romero v. Dep't Stores Nat'l Bank:
“The TCPA is not limited to telemarketing calls; Congress recognized unsolicited contact as a concrete harm regardless of caller or content, and this harm is similar in kind to harm that has traditionally been redressable by courts.”
Hulce's number was alleged to be on the national do-not-call list, and he alleged to have asked Zipongo to stop contacting him. This judge failed to protect someone who alleges they didn't want to hear from Zipongo.
How is this related to Walmart? In lawsuit Barton v. Walmart, Walmart contacted Barton approximately 90 times even after Barton asked them to stop three times, and they continued to contact Barton even after he sued them for unwanted contact.
Walmart has made the same general arguments of avoiding responsibility as in the Hulce case but amazingly, Walmart is alleged to have told Barton when he complained of the unwanted phone calls to change his phone numbers to get them to stop.
"On 12/8/2023 Barton did exactly that. He called 1-800-Walmart, pressed 1, and YouTube video youtube.com/watch?v=WPQhbnxSwOk is a recording of that call. Barton calls, presses 1, eventually reaches live agent Marco, explains the problem to Marco, and Marco’s ultimate advice is there is nothing Walmart can do and they recommend Barton change his phone number or block the calling numbers. "
Barton correctly points out that blocking Walmart's phone calls doesn't solve the legal problem:
"Even if Barton blocked Walmart’s calls, Walmart would still be violating the law with every call. “The regulation prohibits the initiation of a call to a telephone number that has been placed on the FTC do-not-call registry. . . Whether the call was answered is irrelevant under the regulation.”[1]
[1] Barton v. JMS Assoc. Mktg., No. 21-35836, 5 (9th Cir. Feb. 15, 2023)"
If Barton loses the Walmart case, hopefully he appeals this to the Ninth Circuit. This case appears to be the poster child of unwanted contact and this would be a great vehicle for the Ninth Circuit to expand its holdings in Romero to make clear that profit making enterprises like Zipongo and Walmart can't thoughtlessly harass people with "free services" or "customer service" with calls that make them money under the thinking that anyone who doesn't want their calls can just change their phone number.
3/18/2025 Update
The 7th circuit found for Zipongo in Hulce v. Zipongo 2025 WL 829603 (7th Cir. 2025).
Foodsmart did not initiate communications with Hulce for the purpose of encouraging someone who makes the purchasing decision to purchase its services.
The 7th circuit spent a lot of time analyzing “commercial messages” versus "telephone solicitation" to arrive at the conclusion that:
We therefore conclude that “telephone solicitation” means the initiation of a call or message for the purpose of persuading or urging someone to pay for a service. Our conclusion carries an important implication with it: the person or entity the caller intends to encourage is also the party who makes the purchasing decision.
Yes, I believe you read that correctly but I think this is a narrower ruling than it appears. I don't believe under Hulce the local pizza shop can now call you as much as they want to encourage you to encourage your wife to order pizza because if they call you to motivate someone else you have influence over to spend the money, the ruling implies the calls fall under the TCPA. This ruling is anti-consumer but hopefully the telemarketing industry won't figure out how to exploit it to much.
Indeed, while Foodsmart’s purpose was to encourage Hulce to use its services, its purpose could not have been to encourage Hulce to pay for services that were free to him. Nor could Foodsmart’s purpose have been to encourage CCHP to do anything. Although the communications may have resulted in CCHP ultimately paying Foodsmart, the communications and any encouragement within them were solely directed at Hulce
Finally, let's look at a third lawsuit, Rockwell v. Medicus Healthcare Solutions, 2025 WL 959745 (W.D.N.Y. Mar. 31, 2025). The complaint alleges that the defendant, Medicus Healthcare Solutions, LLC (“Medicus”), made multiple unwanted telephone calls to Rockwell in violation of the TCPA. Medicus is a staffing service who worked to place doctors into temporary doctor rolls. Specifically, Medicus was cold calling licensed physician Rockwell to try and get him to be a Medicus client they could shop around as a temporary doctor.
Rockwell told Medicus' phone agent to not call him again and remove his number from their calling list, which of course Medicus ignored and kept calling Rockwell. Rockwell sued Medicus under the telephone consumer protection act, and Medicus moved to dismiss under the argument that the calls were selling anything..
Medicus argues that “the staffing recruiting calls described in the [c]omplaint are neither ‘telephone solicitation’ nor ‘telemarking’ as those terms as defined in the [TCPA] and its implementing regulations.” Medicus says that because the calls made to Rockwell were “recruiting calls,” they did “not encourage the ‘purchase’ or ‘rental’ or ‘investment’ in ‘property’ or ‘goods’ or ‘services’” and should not be considered “telemarketing” or “telephone solicitation.” In response, Rockwell says that the “underlying purpose” of the calls from Medicus was to “solicit its own services”—that is, assisting Rockwell “with finding temporary medical positions and facilitating the CV, licensing, credentialing, and travel process[es] on his behalf.”
The Court pointed out that other consumer unfriendly judges have found similar calls "not selling anything" are not telephone solicitation, and this court too fell into the trap. This Court agrees with the analysis in Gerrard. As other courts have held, advising about “an opportunity to earn money does not constitute a [telephone] solicitation.” But gave Rockwell a shovel:
there is a nuance that may make Rockwell’s complaint different from Gerrard. While the text messages at issue in Gerrard may have solicited work with the caller’s own company, the calls from Medicus clearly did not involve job opportunities with Medicus. Instead, Rockwell had to reach out to Medicus to discuss opportunities available to him with Medicus’s corporate clients. In other words, the relevant opportunities were not with Medicus but rather through Medicus, and presumably by which Medicus would earn commissions or fees. So, drawing all reasonable inferences in favor of Rockwell, Medicus’s calls were not placed simply to alert Rockwell to job opportunities; rather, they were made to further Medicus’s own objectives—namely, providing services to “clients looking for extra help,” by finding physicians who might want to pursue opportunities through Medicus. Moreover, Rockwell is correct that “services that appear to be free or to offer recruitment opportunities may ‘serve as a mere pretext for commercial services.’” Indeed, courts have held that messages merely inviting the recipient to learn more about services or professional opportunities can constitute telephone solicitation or telemarketing under the TCPA. But the problem with Rockwell’s argument is that, unlike those cases, it is not clear from his complaint how Medicus’s supposedly implicit offer of its own professional services fits into its business model. Stated another way, Rockwell does not allege that Medicus would have received anything from Rockwell had Rockwell accepted. Medicus’s invitation. And without that allegation, it is hard to see how the calls encouraged Rockwell to purchase, rent, or invest in any property, goods, or services. Rockwell tries to remedy that deficiency by saying that Medicus “seeks to represent” individual physicians in finding staffing opportunities, which includes assisting them with licensing and travel. But he does not allege that these individual physicians are Medicus’s customers who pay for those services. Indeed, the complaint does not allege that Medicus received any payment in connection with the professional services it provides, either from individual physicians it represents or from corporate clients in search of staffing. It is possible that an individual client like Rockwell would pay a fee if he accepted Medicus’s placement for professional services or have a portion of his eventual income earmarked to cover those services. But it is equally possible that Medicus receives no payment for these services and simply uses them as a tool to ensure it has qualified candidates to place with its corporate clients seeking short-term staffing. In the absence of any allegations about the workings of Medicus’s business model and the role that its professional services play in that business model, this Court cannot conclude that the telephone calls Rockwell received constituted “telemarketing” or “telephone solicitation” under the TCPA and its implementing regulations. That being said, Rockwell has requested “at least one opportunity to amend” his complaint, although he has not provided a proposed amended complaint. At this point, without a proposed amended complaint, the Court cannot say definitively whether amendment would be futile. But, mindful of the Second Circuit’s strong preference for resolving cases on the merits, the Court in its discretion will give Rockwell another opportunity by dismissing his claims without prejudice to his moving to amend his complaint to correct the deficiencies outlined above.
This court was receptive to the idea Medicus would have received money either from clients like Rockwell, or the entities they were recruiting doctors for [duh] and gave Rockwell leave to amend his complaint.
When in a "not selling anything" lawsuit, it is important to allege the various revenue streams motivating the calls. Hopefully you now know more on are calls not selling anything a TCPA violation?
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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