In the case of Taylor v LeadPoint, Inc., the Middle District of
Florida denied defendant, LeadPoint's, motion to dismiss
finding that even unanswered calls could constitute "telephone
solicitations" under the TCPA. LeadPoint, Inc. is a software
and information technology services company for the lead generation
industry.
In this case, Ms. Taylor received five telephone calls on her
cellphone from LeadPoint in one day. After ignoring the first four
calls, she answered the fifth call, and LeadPoint allegedly tried
to sell her a reverse mortgage. Ms. Taylor filed her complaint
alleging that each of the five telephone calls violated the TCPA as
she had registered her telephone number on the national do not call
registry in January 2009.
Leadpoint moved to dismiss the complaint arguing that the four
rejected telephone calls were not "telephone
solicitations" because Ms. Taylor did not answer the calls and
cannot know that the calls were initiated for the purpose of
delivering a sales pitch. LeadPoint further argued that even though
she answered the fifth call and listened to the sales pitch, that
still does not prove that any other calls were initiated for the
same purpose. The Court found this argument "untenable"
as "experience and common sense" creates "a
plausible inference that, if a company calls a person five times in
a day and advertises the company's service when the person
finally answers, the company intended by each call to advertise the
service."
Unfortunately for LeadPoint, "telephone solicitation,"
the court reasoned, is a term of art defined by the FCC as
"the initiation of a telephone call or message for the purpose
of encouraging the purchase [of]...goods[ ] or services." 47
C.F.R. § 64.1200(f)(15) That is, according to the court, the
purpose of the call creates the telephone solicitation, and a
plaintiff "receives" a telephone solicitation even if the
plaintiff declines to answer the call. The court concluded that if
LeadPoint initiated each call to plaintiff intending to advertise a
service, the plaintiff received five telephone solicitations (even
if no call was answered).
Taylor v. LeadPoint, Inc., NO. 8:23-cv-470-SDM-AEP (M.D. FL Jul.
14, 2023).
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