Kaylee A. Racs

Kaylee A. Racs

Kaylee Racs assists clients in all stages of litigation and dispute resolution.

View the full bio for Kaylee A. Racs at the Faegre Drinker website.

Articles by Kaylee A. Racs:


Tenth Circuit Finds That Invitations to Town Halls Regarding Covid-19 Triggered the TCPA’s Emergency Purposes Exception; Declines to Determine Whether a Municipality is a “Person” Under the TCPA

In a case analyzing whether invitations to town hall meetings regarding COVID-19 were exempted from liability by the TCPA’s emergency purposes exception, the Tenth Circuit declined to address whether a municipality is a “person” under the TCPA.

The case, Silver v. City of Albuquerque, — F. 4th —, 2025 WL 1173558 (10th Cir. 2025) arose from plaintiff Gerald Silver’s filing of a putative class action lawsuit alleging that the City violated the TCPA by utilizing pre-recorded phone calls to invite residents to virtual town halls regarding COVID-19. The City moved to dismiss on two grounds: first, that it was not a “person” as defined by the TCPA, and second, that its calls would be exempted from the TCPA based on its exception for calls made for emergency purposes. The District Court granted the motion on the exception argument without reaching the question of whether a municipality is a “person.” In its opinion affirming the District Court’s decision, the Tenth Circuit did the same.

Continue reading “Tenth Circuit Finds That Invitations to Town Halls Regarding Covid-19 Triggered the TCPA’s Emergency Purposes Exception; Declines to Determine Whether a Municipality is a “Person” Under the TCPA”

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.