NO ANSWER, NO SOLICITATION under the TCPA? Not in the ninth circuit thanks to us!
- Peter Schneider
- Sep 19, 2024
- 4 min read
Updated: Apr 14
47 U.S. Code § 227(a)(4) defines "telephone solicitation" 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. Nothing in telephone solicitation requires the call to be answered, just dialed. How do so many trial courts get it wrong? But here goes another one in Weingrad v. Top Healthcare Options, 2024 WL 4228149 (E.D. Pa Sept. 17, 2024).
In the span of two days Weingrad received nine calls from Top Healthcare but he only answered one of them. As you might imagine, Top Healthcare is in the business of selling health insurance so Weingrad sued for receiving two more or more solicitation calls in a 12 month period because the reasonable inference should have been that if one call from a for profit business that sells healthcare, initiated to someone they don't know or have any other reason to call for any other reason then selling the one product they sell and their one reason for existing, the other eight calls were likely initiated for the same purpose.
And that is what Weingrad said in his complaint:
Mr. Weingrad pleads he received nine calls from Top Healthcare Options’s phone numbers and we must infer those calls were telephone solicitations at this stage . . . Mr. Weingrad argues we can infer the purpose of the call from the name Top Healthcare Options used, the “National Health Enrolment Centre,” and the timing of the call falling in “ObamaCare’s Open Enrolment period.”
But some judges have a destination in mind and don't let the facts get in the way, so this court pointed to another district court case that held "blocked, missed, or declined calls are not “telephone solicitations” under the Act." This is obviously not the law but judges often feel confident a client won't pay to appeal a bad ruling like this.
A district court judge in the ninth circuit tried the same thing. My employee sued for telemarketing calls, including two he did not answer (#2 & #6 in the court documents below). The district court judge ruled (page 11 lines 11-13) "Calls #2 and #6, where Plaintiff called the unknown number back and the number was answered by an automated or prerecorded voice, do not provide grounds for violation of the TCPA"
And the judge doubled down in denying a motion to reconsider "the Plaintiff fails to point to any authority that he is entitled to the additional statutory damages he claims". Page 3 lines 4-5.
It was a bad ruling and my employee Nathen Barton appealed it to the ninth circuit who was willing to call a spade a spade on page 5. This ruling makes a repeat of Weingrad in this circuit far less likely.
"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. The district court therefore erred in declining to award damages for the two calls Barton failed to answer."
The underlying facts in the ninth circuit's Barton v. JMS Assoc. Mktg., No. 21-35836, (9th Cir. Feb. 15, 2023) are slightly different from Weingrad because Barton's complaint already had more than two answered solicitation calls, but the logic in Weingrad is predicated on the same erroneous thinking that "blocked, missed, or declined calls are not “telephone solicitations” under the Act", and require a trier of fact to suspend common sense to believe Top Healthcare's eight other calls to Weingrad weren't plausibly telephone solicitations as well.
The Weingrad court is daring the plaintiff to appeal and that is what needs to be done to stop this court from blatantly misapplying the law. I don't know who the plaintiff's attorney in this case is, but the court case the Weingrad judge pointed to wasn't appealed, and the Weingrad judge does not seem concerned about getting appealed either. Judges who know a bad ruling will get appealed make better rulings or get off the case so plaintiff's need to go with a law firm who are willing to appeal.
Hopefully you now know more about just because a call isn't answered does not mean it wasn't a solicitation phone call.. 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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