Telephone Consumer Protection Act

Hulce v. Zipongo, Inc., No. 24-1623, 2025 WL 829603 (7th Cir. March 17, 2025)

Defendant, a for-profit company that provides nutritional consultation to individuals, contracted with a healthcare plan to provide its services to the plan’s members at no cost. This meant that members would not pay any fee, copay, or coinsurance for Defendant’s services. Instead, Defendant would bill, and was paid by, the healthcare plan. Plaintiff filed a putative class action against Defendant, alleging that approximately 20 calls and text messages he received were “telephone solicitations,” which violated the Telephone Consumer Protection Act because his number was listed on the National Do-Not-Call Registry (“DNCR”).

An example text message stated:

October is the month of sweet treats & pumpkin spice everything. Make meeting with a personal dietician part of your Fall routine & balance your blood sugar

 Bundle Up! Get a $25 gift card when you complete a no cost visit in Oct., and $25 for taking the Foodsmart Nutriquiz!

The Issue – Whether The Communications Were “Telephone Solicitations.”

Defendant moved for summary judgment in the trial court, arguing that the communications were not “telephone solicitation,” which the TCPA defines as “the initiation of a telephone call or message for the purpose of encouraging the purchase . . . [of] services.” 47 U.S.C. § 227(a)(4); 47 C.F. R. § 64.1200(f)(15) (emphasis added). The trial court agreed, and granted summary judgment in Defendant’s favor.

The Parties’ Arguments.

Defendant argued that to constitute a “telephone solicitation,” the purpose of the communication must be “to persuade,” or “urge” someone to make a purchase. Plaintiff argued that the purpose of a communication need simply make the purchase “more likely to happen,” i.e., Defendant made it more likely that Plaintiff would use its services, which would result in the healthcare plan paying Defendant. According to Plaintiff, “telephone solicitations” are essentially “commercial messages designed to increase [Defendant’s] profits.”

The Court’s Holding.

Recognizing that the dispute centered on the meaning of the term “encourage” in the TCPA, the Seventh Circuit initially noted that dictionary definitions of the term included both Parties’ proffered meanings. But although a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense. And here, read in context, the natural reading of the term “encourage” means to “persuade,” or “urge” someone to pay for a service, a conclusion fortified by the Court’s reading of the TCPA as a whole.

In sum, the Court stated:

“telephone solicitation” means the initiation of a call or message for the purpose of persuading or urging someone to pay for a service. Our conclusion carries an important implication with it; the person or entity the caller intends to encourage is also the party who makes the purchasing decision. That is, we agree with the district court that we cannot separate the encouragement element from the purchasing element . . . [Defendant] did not initiate [the communications] with the purpose of persuading or urging anyone to pay for its services. Indeed, while [Defendant]’s purpose was to encourage [Plaintiff] to use its services, its purpose could not have been to encourage [Plaintiff] to pay for services that were free to him. Nor could [Defendant]’s purpose have been to encourage [the health care plan] to do anything.

A copy of the opinion can be accessed by clicking here.