In Weister v. Vantage Point AI, LLC, No. 8:21-cv-1250-SDM-AEP, 2022 U.S. Dist. LEXIS 139642, at *2-5 (M.D. Fla. Aug. 3, 2022), Judge Merryday denied summary judgment to a ringless voicemail message provider whose telemarketing messages were challenged under the TCPA. The facts were as follows:
The following facts are either undisputed or construed in Weister’s favor. VantagePoint sells “financial, technical analysis software, artificial intelligence, for retail [stock] traders.” (Doc. 41-1 at 5) VantagePoint hosts live and webinar events to train traders to use VantagePoint’s “artificial intelligence” software. (Doc. 41-1 at 2) To promote these training events, Trader Marketing Group, an affiliate of Van-tagePoint, purchases radio spots and transmits promotional texts and voicemails to consumers. (Doc. 41-1 at 3) In December 2020, Trader Marketing Group ran a radio spot, which stated, “Text DEMO to 411411 to get what you need to stay ahead of market trends and find explosive moves before they happen,” “Text DEMO to 411411 to find out how our technology can forecast market trends up to 3 days in advance with incredible accuracy,” and “Text DEMO to 411411 and experience VantagePoint for free.” (Doc. 36-2 at ¶ 4) After hearing the radio spot, Weister texted “DEMO” to 411411. (Doc. 33-1) In response, Weister received a text stating, “VP: START NOW! https://vpai.us/start-naw for a free online AI class or call 800-732-5407 during business hours ET. STOP to cancel.” (Doc. 33-1) Weister decided not to attend the event and neither responded to the text nor entered information on the webpage. From January through March 2021, Weister received fifteen pre-recorded “ringless” voicemails promoting training events hosted by VantagePoint. (Doc. 29-3 at 6) To transmit these “ringless” voicemails, Trader Marketing Group uses “Slybroadcast,” a program that transmits in rapid succession two calls: the first call to momentarily occupy the cellular telephone’s line and the second call to bypass the occupied line, access the voicemailbox directly, and deliver the pre-recorded voicemail. (Doc. 33-4) Although the scripts for VantagePoint’s pre-recorded ringless voicemails differ, each script invites the recipient to attend a “free live training webinar” about Van-tagePoint’s artificial intelligence software. (Doc. 29-1 at 11-25) Some of the scripts offer a “free AI forecast” for each webinar attendee. (Doc. 29-1 at 22) Also, each voicemail script informs the recipient of the option to cease voicemails by visiting a URL and entering both a name and a cellular telephone number. (Doc. 29-1 at 22) The following voicemail transcription represents the fifteen ringless voicemails Weister received. Hi, this is Harold calling from VantagePoint AI. I hope you’re having great success in the financial markets. It’s currently Friday, January 29th. The reason for my call is that you had recently expressed an interest in wanting to learn more about artificial intelligence trading. So I wanted to connect and extend an invitation and let you know that this afternoon at two o’clock Eastern time, we’re actually doing a live webinar where we’re going to discuss the two trading strategies using artificial intelligence to dominate 2021. To register, all you have to do is go to tradingeducation.com. That’s tradingeducation.com. On this webinar, what we do is we’re going to basically dissect every sector of the market so that you can see what the artificial intelligence has been forecasting. But most importantly, you’re also going to get the opportunity to see what artificial intelligence is forecasting for the days and weeks ahead. All attendees to the webinar will also get a free AI forecast for whatever assets you’re trading in your portfolio that you’re unsure about and would like to see what the artificial intelligence is forecasting for them. So head on over to tradingeduca-tion.com, get yourself registered. And I look forward to seeing you on the webinar very shortly. If for some reason you want to stop receiving these voicemail invitations, that’s fine. Simply head on over to stopvoicemail.com and you will be remove[d] from the invitations list. Look forward to seeing you on the webinar very shortly. Thank you. (Doc. 29-1 at 22) Although by texting “DEMO” to 411411 Weister consented to receive a text containing the registration link, Weister contends that the fifteen pre-recorded messages exceed Weister’s consent and subject VantagePoint to liability under the TCPA.
The District Court rejected an Article III standing challenge.
Unlike the single text received in Salcedo, Weister received fifteen voicemails, each of which invited Weister to register for a training webinar. Although a single communication lacks — by definition — a harassing or hounding quality, the receipt of fifteen voicemails yields a qualitative change from the “fleeting” annoyance in Salcedo to conduct bearing a “close relationship” to the hounding and harassment actionable at common law. Spokeo, 136 S. Ct. at 1549; Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1270 (11th Cir. 2019) (“The receipt of more than one unwanted telemarketing call made in violation of the provisions enumerated in the TCPA is a concrete injury that meets the minimum requirements of Article III standing.”). Attempting to avoid this straightforward application of Salcedo and Cordoba, VantagePoint argues that, because Weister “invited” communication from Vantage-Point by texting “DEMO” to 411411, Weister suffered no injury-in-fact by receiving the fifteen voicemails. Although the analysis of standing often overlaps with the analysis of the merits, in this instance the analyses remain distinct. In an action under the TCPA, consent functions as an affirmative defense to liability and not “as an issue of constitutional standing.” Reese v. Marketron Broad. Sols., Inc., No. CV 18-1982, 2018 WL 2117241, *2 (E.D. La. May 8, 2018) (collecting cases). Regardless, Weister’s one-time text of “DEMO” in response to the radio spot naturally invited a one-time registration text from VantagePoint — not fifteen voicemails “inviting” Weister to attend a training webinar. Daniel v. Five Stars Loyalty, Inc., No. 15-CV-03546-WHO, 2015 WL 7454260 (N.D. Cal. Nov. 24, 2015) (“[A] text sent solely for the purpose of allowing the recipient to complete a registration process that he or she initiated shortly before receiving the text is not telemarketing.”). Under prevailing precedent, Weister demonstrates standing to sue under the TCPA.
The District Court rejected a Hobbs Act challenge.
Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1120 (11th Cir. 2014), holds that the Hobbs Act not only eliminates the district court’s jurisdiction to review a final order of the FCC but eliminates the jurisdiction of the district court to issue any ruling that has “the practical effect” of contradicting or countermanding a final order of the FCC. Under Mais, the district court lacks jurisdiction in private litigation “to consider claims to the extent they depend on establishing that all or part of an FCC order subject to the Hobbs Act is ‘wrong as a matter of law’ or is ‘otherwise invalid.'” Mais, 768 F.3d at 1120 (quoting Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 462 (11th Cir. 2012). Under Mais, a private litigant accused of conduct violative of a final order interpreting the TCPA has no recourse other than “to ask the Commission to reconsider its interpretation” or apply to the FCC for a retroactive waiver or to petition the FCC to rescind the rule. Mais, 768 F.3d at 1121. Bound by Mais and Self, the district court must dutifully comply with the prohibition against considering any contention that a final order “is wrong as a matter of law” or “is otherwise invalid” and decline to consider even a challenge that a final order of the FCC results in an unconstitutional application of the TCPA. See Woods v. Santander Consumer USA Inc., No. 2:14-CV-02104-MHH, 2017 WL 1178003, n.8 (N.D. Ala. Mar. 30, 2017) (Haikala, J.); Drake v. FirstKey Homes, LLC, 439 F. Supp. 3d 1313, 1328 n.6 (N.D. Ga. 2020) (May, J.); see also Greenley v. Laborers’ Int’l Union of N. Am., 271 F. Supp. 3d 1128, 1149 (D. Minn. 2017) (Wright, J.). But this rule might end soon. In a unanimous concurrence, Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094 (11th Cir. 2019), marshals formidable authority criticizing the rule announced in Mais and Self (and in other circuits) and concludes that these decisions either misinterpret the Hobbs Act or fail to confront the serious questions presented by a statute that strips the district court of the power to issue a ruling in private litigation that “countermand[s]” the FCC. . . .Although Gorss persuades that Mais and Self incorrectly interpret the Hobbs Act (or correctly interpret the Hobbs Act but fail to confront the act’s contingent unconstitutionality), Gorss confirms that Mais and Self govern in the Eleventh Circuit.
Finally, the District Court rejected a merits-based challenge that the voicemails were not telemarketing.
On the merits, VantagePoint argues that the pre-recorded voicemails are not “telemarketing” and for that reason escape the 2012 FCC order’s heightened requirement of prior express written consent. The FCC at 47 C.F.R. § 64.1200(f)(13) defines “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” Even if offering nothing for sale, a call constitutes telemarketing if a “purpose” of “initiating” the call is to promote a sale. Golan v. Veritas Ent., LLC, 788 F.3d 814 (8th Cir. 2015). In Golan, the plaintiff received an unsolicited voicemail message stating, “Liberty. This is a public survey call. We may call back later.” Although the voicemail message offered nothing for sale, the record in Golan revealed that the caller employed the survey to screen for consumers likely to watch a film produced by the caller. Unlike an “advertisement,” which depends solely on the “content of the call,” . . .Accordingly, Golan finds the voicemail messages “telemarketing” because the “survey calls” served principally to promote the sale of tickets for a film. Golan, 788 F.3d at 820. Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063 (S.D. Fla. 2020) (Williams, J.), finds that a pet store’s texts promoting an adoption event constitute telemarketing — even though the text offered nothing for sale — because a purpose of the text is to encourage attendance at the adoption event and a purpose of the adoption event is to promote the sale of the pet store’s products and services. In other words, Eldridge holds that if a purpose of a call is to promote attendance at an event and a purpose of the event is to promote the sale of the caller’s product or service, the call constitutes telemarketing. Similarly, Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmacies, Inc., 847 F.3d 92 (2d Cir. 2017), analyzes the TCPA’s analogous prohibition against an unsolicited fax and finds that an invitation to attend a free seminar implies “the commercial purpose of promoting [the seller’s] products or services” because “[b]usi-nesses are always eager to promote their wares and usually do not fund presentations for no business purposes.” The record reveals no dispute that VantagePoint’s purpose in sending the fifteen pre-recorded voice messages is to promote participation in VantagePoint’s training webinars. And the record permits the inference that a purpose of the training webinars is to promote VantagePoint’s “artificial intelligence” software. First, some of VantagePoint’s voice messages acknowledge that attendees to the webinar receive a “free trial” of VantagePoint’s trading platform, and a “free trial” presumes the existence of a paid version. Second, Weister cites a YouTube video in which a Van-tagePoint “coach” explains VantagePoint’s program and offers VantagePoint’s products for sale through a hyperlink. Third, Weister cites Better Business Bureau reviews explaining that at the end of VantagePoint’s training webinar a coach attempts to sell VantagePoint’s program. The material marshalled by Weister to oppose VantagePoint’s motion for summary judgment — far from incontrovertible but reinforced by the timeless observation that “[t]here ain’t no such thing as a free lunch” —supports the inference that the pre-recorded voicemails constitute telemarketing for which VantagePoint lacks Weister’s prior express written consent. The motion (Doc. 29) for summary judgment is DENIED.