A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations. Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.
In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times. No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023). Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website. Id. Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand. Id. Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata. Id. at *2.
Hunsinger filed a lawsuit alleging that Dynata’s supposed agents contacted him twice during a 12-month period on a registered DNC number using an ATDS and failed to ratify and produce an internal DNC policy. Id. Hunsinger asserted purported violations of several FCC regulations implementing the TCPA, as well as Texas Bus. & Com. Code § 305.053. Id. He also alleged a claim under Texas common law for intrusion upon seclusion. Id. Dynata filed a motion to dismiss all of Hunsinger’s claims. Id.
Magistrate Judge Rebecca Rutherford issued a report and recommendation stating that the District Court should grant the motion to dismiss and concluding that Mr. Hunsinger failed to state a claim for any of his theories of liability.
With respect to the TCPA claims, Judge Rutherford determined that Hunsinger did not plausibly allege that Dynata (or a third party acting on its behalf) placed the call or text “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” as required to establish an actionable “telephone solicitation.” Id. at *8 (quoting 47 C.F.R. § 64.1200(f)(15)). Judge Rutherford noted that under the prevailing FCC regulations, “calls involving ‘surveys, market research, political or religious speech’ do not fall within the definition of ‘telephone solicitation’ and will not be precluded by registering a number on the national DNC list.” Id. (quoting In re Rules & Regs. Implementing the TCPA, 18 F.C.C. Rcd. 14014, 14040 (2003)). Although “the FCC [has] also stated that ‘[survey] calls may be prohibited if they serve as a pretext to an otherwise prohibited advertisement or means of establishing a business relationship,’” Judge Rutherford found that neither the call, the text, nor the websites that Hunsinger was directed to visit attempted to promote or prelude a commercial transaction. Id. (quoting 18 F.C.C. Rcd. at 14040 n.141)). Hunsinger therefore failed to state a claim for a violation of 47 C.F.R. § 64.1200(c) because his complaint did not establish an actionable “telephone solicitation.” Id.
Judge Rutherford explicitly rejected Hunsinger’s argument that Dynata “encourag[es]” transactions by promoting brand awareness and influencing consumer purchases, because this reasoning “would render the FCC’s guidance meaningless, as all market research could fall under [t]his proposed ‘influence liability’ theory . . . .” Id. Judge Rutherford cited Suttles v. Facebook, Inc., 461 F. Supp. 3d 479, 482-83 (W.D. Tex. May 20, 2020), for the proposition that an invitation to visit a website, “even one whose business is centered around user data,” does not constitute a telephone solicitation for TCPA purposes. Hunsinger, 2023 WL 2377481, at *8.
Hunsinger also failed to state a claim under Section 64.1200(d) because that provision applies only to entities that engage in “telemarketing purposes,” which like “telephone solicitation” is defined as “encouraging the purchase or rental of, or investment in, property, goods, or services.” Id. at *9 (quoting 47 C.F.R. § 64.1200(f)(13)). Thus, Hunsinger could not seek to hold Dynata liable for failing to meet the “minimum standards” set forth in Section 64.1200(d) for maintaining an internal DNC policy and for training telemarketing personnel on DNC rules and regulations. Id.
Judge Rutherford determined that Hunsinger’s TCPA claims failed for numerous other reasons. See id. at *6 (finding that complaint failed to establish the necessary agency relationship between Dynata and the third-party caller because it contained “nothing more than formulaic recitations of an agency relationship”); id. at *7 (concluding that use of an ATDS was not established because a lone allegation that there were “several seconds” of dead airtime after Hunsinger picked up the call, without more, could not support a plausible inference that an ATDS was used).
The District Court accepted Judge Rutherford’s Report and Recommendation in its entirety and granted Dynata’s motion to dismiss the TCPA claims with prejudice. Hunsinger, No. 22-cv-136-G-BT, Dkt. Nos. 24 & 25 (N.D. Tex. Mar. 4, 2023).
Judge Rutherford correctly determined that an “influence liability” theory would eviscerate the FCC’s safe harbor for calls and texts related to market research and other consumer surveys. However, it is not yet clear if other courts will reach a similar conclusion regarding this issue. Organizations that conduct market research or other public surveys via telephone or text message should assess whether courts in the jurisdiction(s) where they operate have addressed this issue and the current state of the law.
We will continue to monitor how courts respond to the “influence liability” theory and will report on developments that may impact how organizations engage in consumer research and other public surveys via telephone calls or text messages.
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