Seventh Circuit Affirms Summary Judgment and Adopts Narrow Interpretation of “Telephone Solicitations”

The Seventh Circuit recently affirmed entry of summary judgment against a TCPA plaintiff and adopted the Eastern District of Wisconsin’s interpretation of the phrase “telephone solicitations.” Hulce v. Zipongo, Inc., — F. 4th —, 2025 WL 829603 (7th Cir. 2025). The Seventh Circuit held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” The Hulce plaintiff could not meet this standard because the services at issue were offered to him free of charge. The decision solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years.

James Hulce, a Wisconsin resident who received his health care through Medicaid, opted to enroll in Chorus Community Healthcare Plans (CCHP). CCHP, in turn, contracted with Defendant Zipongo, Inc. (d/b/a Foodsmart) to advertise nutritional consultations to its members. The consultations were offered to members at no cost. Hulce alleged that he received approximately twenty calls and text messages from Foodsmart despite his registration on the national do-not-call list and his requests for further communications to cease.

The central issue at summary judgment was whether the word “encouraging” as used in the TCPA’s definition of “telephone solicitation” (47 U.S.C. § 227(a)(4)) means to “persuade” or “urge,” as Foodsmart argued, or merely to make a purchase “more likely to happen.”

Ultimately, the Seventh Circuit held that one “cannot separate the encouragement element from the purchasing element.” The court reasoned that “[a] straightforward conclusion flows from this interpretation.” Specifically, the court held that “Foodsmart’s calls [did] not fall within the definition of ‘telephone solicitation’ because Foodsmart did not initiate them with the purpose of persuading or urging anyone to pay for its services.” The court held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” Although “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.” Therefore, the Seventh Circuit affirmed the district court’s order granting summary judgment against Hulce.

This ruling is the first of its kind from a U.S. Court of Appeals, and it solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years. Despite the favorable outcome, the Seventh Circuit cautioned parties not to “overread” the “decision to create a sweeping loophole within the prohibition of telephone solicitations.” Businesses offering free goods or services now have another defense against frivolous TCPA claims but they should be sure to consult with counsel given the ever-changing landscape of TCPA law.

Whirlwind of Activity Ends With Eleventh Circuit Invalidating FCC’s Lead Generation Rule

Our regular readers will no doubt be familiar with the one-to-one-consent and logically-and-topically-related requirements the FCC (under the prior administration) had tried to impose as a way to close what it had described as a “lead generator loophole.” On Friday, the FCC (now under a new administration) postponed the effective date of the rule, the validity of which was still being reviewed by the Eleventh Circuit Court of Appeals. Later that day, the Eleventh Circuit issued its ruling in that appeal, finding that the rule is invalid. As a result, in the absence of further appellate review of that ruling, the proposed rule is no more.

The Eleventh Circuit’s decision should be read by anyone who litigates in this space, or indeed in any space where alleged liability is premised on supposed violations of federal or state regulations. The main question on appeal was whether the FCC had statutory authority to impose the new one-to-one-consent and logically-and-topically-related requirements. The Eleventh Circuit found that it did not, as the FCC only has statutory authority to “implement” the TCPA, and the plain language of the TCPA “requires only ‘prior express consent’ — not ‘prior express consent’ plus.” Opinion at 14. As the Eleventh Circuit explained, “implement” means “to complete,” “perform” and “carry into effect,” not to “alter.” Id.

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Python Bites Back: Counterclaims Based on Alleged Consent Survive Plaintiff’s Motion to Dismiss

TCPA defendants often assert, in either a motion to dismiss or answer (or both), that a plaintiff gave prior express consent to receive the calls or text messages at issue. But it is the exceptional case where a defendant actually files a counterclaim against a plaintiff on this ground. Rarer still is the case where a plaintiff then moves to dismiss that counterclaim. This series of events is precisely what occurred, however, in Estrada v. Aragon Advertising, LLC, et al., No. 4:23-3407, 2024 WL 5059166 (S.D. Tex. Dec. 10, 2024).

Plaintiff Nelson Estrada (Plaintiff) filed a putative class action claiming TCPA violations by Defendants Aragon Advertising, LLC (Aragon) and Python Leads, LLC (Python) (collectively, “Defendants”). Plaintiff alleged that Aragon bought leads from lead generators, including Python, to obtain consumer contact information, and then Defendants made prerecorded telemarketing calls to people who had never consented, had no established business relationship with Defendants, and/or had placed their numbers on the national do-not-call registry.

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Federal Court Dismisses Action for Lack of Personal Jurisdiction Due to Insufficient Agency Relationship

A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.

In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.

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N.C. Federal Court Casts Doubt on Extraterritorial Reach of State Telemarketing Statute

The Middle District of North Carolina recently denied, in part, a motion seeking dismissal of serial TCPA plaintiff Craig Cunningham’s complaint alleging violations of the TCPA and the North Carolina Telephone Solicitations Act (NCTSA). See Cunningham v. Wallace & Graham, P.A., et al., No. 1:24-cv-00221 (M.D.N.C. Nov. 19, 2024). The court suggested that the NCTSA probably does not apply extraterritorially but ultimately denied defendants’ motion to dismiss the NCTSA claim because the parties did not brief the issue.

In Wallace & Graham, plaintiff alleged that he received initial calls from an agent of Sokolove Law, LLC (Sokolove), asking if he was interested in pursuing a claim against the government for toxic exposures that occurred at Marine Corps Base Camp Lejeune (despite the fact that plaintiff allegedly never worked at Camp Lejeune).

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Inherently Individualized Issues of Fact Cause Court to Deny Dismissal and Certification in Case Targeting Health Care Calls

Depending on whether you’re a glass-half-full or glass-half-empty kind of person, plaintiff and defendant both won or both lost when a judge in the Northern District of Illinois recently denied in one fell swoop both the defendant’s motion for summary judgment and the plaintiff’s motion for class certification. Murtoff v. My Eye Doctor, LLC, 21-2607, 2024 WL 4278033 (N.D. Ill. Sept. 24, 2024).

In a case involving health examination reminder calls to someone who was not a current patient, the plaintiff alleged that she received unwanted telemarketing telephone calls from MyEyeDr. leaving pre-recorded voice messages to remind her that she was due for her annual eye exam, in violation of the TCPA. MyEyeDr. filed a motion for summary judgment, arguing that these calls were not telemarketing but rather fell under the Health Care Rule exception to the TCPA, which protects prerecorded healthcare calls (1) that concern a health-related product or service; (2) made by or on behalf of a health care provider to a patient with whom there is an established health care treatment relationship; and (3) that concern the individual health care needs of the patient recipient.

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Supreme Court to Address FCC’s Authority in TCPA Cases: McLaughlin v. McKesson Cert Grant

The Supreme Court has granted certiorari in McLaughlin Chiropractic Associates v. McKesson Corporation (No. 23-1226) to address whether the Hobbs Act requires district courts to follow the FCC’s interpretation that the TCPA does not prohibit faxes received via “online fax services.” This case revisits a key question left unresolved in 2019’s PDR Network v. Carlton & Harris Chiropractic about the binding nature of FCC orders in TCPA litigation. The Court’s decision could potentially determine whether and to what extent courts must follow FCC interpretations in TCPA cases going forward. Oral arguments have not yet been scheduled.

Texas Federal Court Finds Prerecorded Calls to Schedule Pest Inspections Were Informational, Not Telemarketing

A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.

In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.

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Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’

The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.

The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).

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TCPA Boundaries Drawn: Marketing Text Messages to Known Telephone Numbers Permitted

In Marina Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. (101 F.4th 176), the Second Circuit addressed critical questions regarding the definition of an “automatic telephone dialing system” (ATDS) and whether text messages fall under the TCPA’s prohibition against the use of an “artificial or prerecorded voice.”

Marina Soliman brought a putative class action against Subway, alleging that the company had violated the TCPA by sending her automated marketing text messages after she had opted out of receiving them. The United States District Court for the District of Connecticut dismissed her claims, concluding that the TCPA did not apply to Subway’s actions. Soliman appealed this decision, but the Second Circuit ultimately affirmed the district court’s ruling.

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