The unsolicited calls from Clear Channel station WLTW landed in the voicemail boxes of New York residents in June 2005. A prerecorded message from Al "Bernie" Bernstein urged them to tune into the station for Motown, Elton John, Carol King, and prizes.
"This week, when the music stops at 9:20, be the tenth caller 1-800-222-1067," the message continued. "Tell us the name of the Motown song we played during that hour, and you'll win one thousand dollars. Easy money. And the best variety from 106.7 Lite FM."
Thousands of New Yorkers got the message whether they wanted it or not. But the mass call was probably least appreciated by New Yorker Mark Leyse, who filed a class action suit against Clear Channel charging that the company violated the Telephone Consumer Protection Act (TCPA) of 1991.
Congress passed the act, in the Federal Communication Commission's words, "in response to consumer concerns about the growing number of unsolicited telephone marketing calls to their homes and the increasing use of automated and prerecorded messages." The law defines a "telephone solicitation" as "a telephone call that acts as an advertisement."
By that definition anyone might conclude that Clear Channel, which owns about 1,200 radio stations across the country, deserved the punishment that comes with breaking the law—a 500 dollar fine per violation.
But on Thursday, January 5, Judge Harold Baer Jr. of the U.S. Southern District Court of New York ruled otherwise. In fact, Baer noted, in 2003 the FCC, which handles complaints about unsolicited calls, issued an interpretation of the TCPA that exempted WLTW's phone blitz. The Commission decided that such messages were acceptable if their purpose was "merely to invite a consumer to listen or to view a broadcast."
Baer ruled that his court would defer to this interpretation, albeit with strong doubts about the FCC's take on the law. "I have serious questions as to whether this is the type of phone call Congress intended to exempt when it granted such authority to the FCC," the judge noted.
Leyse's attorney Todd C. Bank says he has already filed an appeal on the decision and insists that such unsolicited phone calls are still inappropriate.
"These calls are an intrusion," he told www.lasarletter.com. "What is worse is that, unlike a regular telemarketing call, you can't tell the prerecorded message to please take you off their list. Imagine if everybody did this? You wouldn't be able to own a phone."
Bank says he hopes the appeal will be heard within the next nine months.
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