Plaintiff Stands by Claims That Texts She Got Were Telemarketing -- and Violated TCPA

U.S. District Judge Kenneth Bell for Western North Carolina in Statesville should deny InvestorPlace Media’s Sept. 27 motion to dismiss plaintiff Courtney Hill’s first amended Telephone Consumer Protection Act complaint because the text messages it sent Hill for months were profit-driven and meant to drive traffic to its website where it solicits the sale of its services, said Hill’s opposition Tuesday (docket 5:23-cv-00111).

InvestorPlace contends it wasn’t doing telemarketing, as the FCC defines it, when it inundated Hill with the text messages she hadn’t consented to, but said it was providing free investment advice to consumers, absolving it of any TCPA wrongdoing (see 2309280016). But the 4th Circuit’s “reasoning and holding are consistent with the majority view as to what constitutes telemarketing,” said Hill’s opposition.

From a “commonsense standpoint,” as shown by InvestorPlace’s lack of alternate explanation, “there can be no reason” other than Hill’s “undisputed facts” as to why InvestorPlace would send her text messages, said her opposition. The messages were sent to promote and sell InvestorPlace’s subscription services, it said.

InvestorPlace concedes that the question before the court is whether it was engaged in telemarketing without consent, said Hill’s opposition. Hill, however, disagrees with InvestorPlace’s “myopic interpretation” of what constitutes telemarketing under the TCPA, it said. Contrary to InvestorPlace’s position, there’s no “blanket rule that text messages purporting to offer free advice are not telemarketing,” it said.

Moreover, the 9th Circuit U.S. Court of Appeals observed in its 2012 decision in Chesbro v. Best Buy that the FCC has determined that so-called “dual purpose” calls -- those with both a customer service or informational component, plus a marketing component -- are prohibited under the TCPA, said Hill’s opposition. The 9th Circuit explained that in applying the dual purpose rule, courts must focus not on the caller’s characterization of the call but on the purpose of the message, it said.

The logic behind examining intent is sound, said Hill’s opposition. If the analysis relied solely on the face of the communication, companies could easily circumvent the TCPA’s rules by using informational communications as a hook to solicit business, while claiming, as InvestorPlace does, they’re not violating the statute, it said: “This would eviscerate the TCPA’s prohibitions.”

Courts evaluating calls that contain an informational and marketing component “have found them to be dual purpose calls governed by the statute,” said Hill’s opposition. InvestorPlace’s calls to Hill “are at best dual-purpose solicitations that are actionable under the TCPA because they contained an informational and marketing component,” it said. InvestorPlace nevertheless contends Hill can’t allege InvestorPlace earns a commission or otherwise profits when those who receive its text messages view its free materials, it said.

But InvestorPlace can’t dispute Hill’s allegations “by answering a question that has not been asked,” said her opposition. Hill doesn’t allege InvestorPlace sent her unsolicited text messages “for charitable purposes,” it said. Her allegations are that InvestorPlace sent text messages with hyperlinks to its website to drive consumers to its subscription services for which it charges a fee, it said. At this stage of the proceedings, the court should conclude that Hill’s allegations “control,” and it should deny the motion to dismiss, it said.