Is this setting up a new telemarketing scam, or preventing them?
- Peter Schneider
- 1 day ago
- 3 min read
There is a text message case out there that says basically that if you reply STOP to a telephone solicitor, they get one last 'free' reply subject to a number of conditions. One of those being, the last reply can't be telephone solicitation.
I'd say the real world analog to this is returning a missed phone call. That's what Keller Williams did in lawsuit Butera v. Sugarhouse Real Estate Group 2025 WL 1798968 (D. Utah June 30, 2025).
Mr. Butera listed a property for sale in 2020 through a brokerage that is not affiliated with KW. The listing for the property expired, and Mr. Butera decided not to relist it. That caused him to receive many unsolicited calls and text messages from real estate agents, despite the fact that his cell phone number is registered on the DNC.
One of those calls went unanswered, but Mr. Butera called the number back. That call also went unanswered, but he did reach a voicemail recording stating that the caller had reached “Dave from the Utah Roost team at Keller Williams Salt Lake City.” Mr. Butera did not leave a message or communicate with “Dave from the Utah Roost team at Keller Williams Salt Lake City.”
The next morning, at 10:28 AM, Mr. Butera received another call to his cell phone from 801-410-0097. When he answered this call, the real estate agent immediately began a solicitation for Mr. Butera to relist his expired property listing. Mr. Butera told the agent that his cell phone number is registered on the DNC and asked not to be called again. The call then ended.
Mr. Butera then sued. arguing that the first call and obviously the second call were telephone solicitation. KW argued that the second call wasn't telephone solicitation because it was prompted by returning Mr. Butera's returned call.
KW argues that by calling the unknown number, Mr. Butera induced KW’s return call. As a result, KW argues, Mr. Butera has failed to state a claim under the specific requirements of the TCPA, and his complaint must therefore be dismissed.
The court went with KW's argument because taken to its logical extreme, [Mr. Butra's argument] would permit individuals who are registered on the DNC list to make return calls to businesses like KW that had perhaps made one unsolicited phone call, thereby eliciting a return call, and then alleging a violation of the TCPA.
That could happen but the evidence isn't clear that is what happened here. Sure, I return missed calls too, but when I do, I don't immediately launch into a sales pitch when the other side answers like Dave from Keller Williams did, I say I'm returning a missed call and I try to find out why they were calling me.
Telephone solicitation is defined in 47 CFR § 64.1200(f)(15) 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.
This judge is assuming that every call a business makes is telephone solicitation, including returning missed calls, and they are not. I don't think it is telephone solicitation for a business to call a number back and say "This is XYZ and we missed a call from this number" - and don't make a sales pitch! Or at least until the person expresses interest in what the business does.
I don't follow 10th circuit politics but I'd consider appealing this in the 9th. Had Dave called back and started out with "hey I am returning your missed call", and let Mr. Butra express what he was calling about, that Dave should have been liable under the TCPA.
And for those of you in this position, it is a reason to return missed calls with an investigation phone and avoid this issue.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, bankruptcy-related harassment, or even general legal related issues, we might research and feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington or Oregon?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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