Federal appeals court rules that Best Buy automated ‘robot’ calls are illegal advertising

Posted
by Jay Pate

When Michael Chesbro bought a computer from Best Buy in 2008, he signed up for a no-interest payment plan to finance the cost of the computer. According to Best Buy, he also agreed to join Best Buy’s Reward Zone Program. The program allows customers to earn points toward certificates — coupons with a $5 value for every $250 spent — that can be applied toward future purchases at Best Buy. Best Buy contends that, as an RZP member, Mr. Chesbro consented to the terms of the RZP Privacy Policy, which authorizes Best Buy to contact program members with program-related communications.

After buying the computer, Mr. Chesbro received many automated “robot” calls from Best Buy. He estimates that he received “more than five, less than a dozen” calls from Best Buy during this period; he could identify the caller from the caller identification feature on his phone. According to Mr. Chesbro, the calls from Best Buy continued even after he notified them to place him on a do-not-call list.

Michael Chesbro, on behalf of himself and others, brought a class action lawsuit against Best Buy alleging that the robot calls from Best Buy violated the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted” by FCC rules.

Best Buy filed a motion to dismiss the case arguing the calls were covered by an FCC exemption and thus did not violate federal law. Specifically, the FCC has exempted calls that do “not include or introduce an unsolicited advertisement or constitute a telephone solicitation.” So, the question was: are the Best Buys calls “purely informational” or, at least in part, serving an “advertising purpose.”

The calls from Best Buy included statements such as the following:

Hello, this is Andrea from Best Buy Reward Zone calling for (Recipient’s first and last name) to remind you that your Reward Certificates are about to expire. (Certificate amount) dollars in Reward Certificates were mailed to you on (Mail date) and they will expire if not used by (Expiration Date). If you do not have your reward certificates, you can re-print them online at myrewardzone.com. Thank you for shopping at Best Buy.

Best Buy argued the calls were just providing “information” and were not commercial solicitations. The trial court granted Best Buy’s motion and dismissed the case. Mr. Chesbro appealed and the Ninth Circuit has now reversed the dismissal and reinstated the case.

The court of appeals began by noting the question whether the calls constituted a commercial solicitation needed to be addressed “with a measure of common sense:”

The robot-calls urged the listener to “redeem” his Reward Zone points, directed him to a website where he could further engage with the RZP, and thanked him for “shopping at Best Buy.” Redeeming Reward Zone points required going to a Best Buy store and making further purchases of Best Buy’s goods. There was no other use for the Reward Zone points. Thus, the calls encouraged the listener to make future purchases at Best Buy.

Chesbro v. Best Buy Stores, L.P., No. 11-35784 (9th Cir. Oct. 17, 2012). In short, although Best Buy’s calls made no explicit mention of any good, product or service, the implication was clear from the calls’ context that they encouraged the listener to make future purchases. Finding the calls violated the TCPA, the Ninth Circuit reversed the judgment for Best Buy and sent the case back to the trial court. The full opinion in the case is available online.

Heygood, Orr & Pearson Fighting for Consumers

Are you receiving unwanted automated “robot” calls without your prior consent? Federal law provides valuable rights to consumers when the TCPA is violated. For example, federal law authorizes the recovery of statutory damages, generally from $500 to $1500 for each violation, which are paid to the consumer.

Contact the lawyers at Heygood, Orr & Pearson for your free case evaluation and to learn more about your legal right to compensation. You can reach us by calling toll-free at 1-877-446-9001, or by filling out a free legal consultation form.