The Telephone Consumer Protection Act (TCPA) has been making news of late, with the U.S. Court of Appeals for the District of Columbia’s partial rejection of a Federal Communications Commission rulemaking grabbing most of the headlines. We reported on that here. It is understandable that the D.C. Circuit’s decision has captured the attention of telemarketers and TCPA practitioners. However, nonprofit organizations and for-profit companies that help nonprofits reach consumers via telephone and text message should also take note of a less publicized recent TCPA opinion.

For years, Anthem Foundation, Inc. has supported the American Heart Association (AHA) and its “Hands-Only CPR” campaign to help people respond to a cardiac arrest event. Anthem Foundation is a 501(c)(3) charitable organization that serves as the philanthropic arm of for-profit insurance company Anthem, Inc. The plaintiff in Reese v. Anthem, Inc. admitted that she had provided her cellular phone number to AHA in order to receive “monthly CPR reminders, healthy messaging information, and [questions from AHA].” According to her amended complaint, though, the plaintiff and unnamed class members allegedly were “bombarded” with unwanted text messages that contained only “vacuous” pieces of medical information. Moreover, because the text messages stated “AHA/Anthem Foundation” and because Anthem Foundation’s name and logo appeared on AHA’s Hands-Only CPR webpages, the plaintiff believed that the ostensibly informational text messages actually served as pretexts for an advertising campaign benefiting Anthem, Inc. and Anthem Foundation.

The crux of the plaintiff’s TCPA theory was that while she voluntarily consented to receive informational text messages from AHA, she never consented to receiving text messages from Anthem Foundation and, by extension, Anthem, Inc. The U.S. District Court for the Eastern District of Louisiana, however, rejected plaintiff’s arguments and granted defendants’ motion to dismiss. Here are some key takeaways from the court’s decision:

• • Plaintiff consented to receiving the texts about which she complained. The court explained that an individual provides prior express consent to be called or texted at the number provided when (1) she has provided her number to the calling/texting party, and (2) there is some relation between the communications and the reason for which she provided her number. In Reese, it was undisputed that the plaintiff provided her phone number to AHA. As to the second prong, the court held that the plaintiff received precisely the type of text messages that she signed up for: communications about CPR and healthy living.
    • Plaintiff’s assertion that she had not consented to receiving text messages from Anthem Foundation was firmly rejected. It was “irrelevant,” held the court, that AHA’s text messages referenced Anthem Foundation. “[T]he sender was, in fact, AHA” and “Plaintiff has not cited any persuasive cases that say a nonprofit’s association with a donor or another charitable entity – i.e., Anthem Foundation – gives rise to a TCPA claim when she voluntarily sought to receive certain communications and information.”
  • Charitable partnerships with for-profit entities do not necessarily render the communications commercial. Throughout her complaint, the plaintiff characterized AHA’s texting program as a commercial advertising endeavor (orchestrated by Anthem and Anthem Foundation) masquerading as charitable information dissemination. She accused AHA of “rent[ing] out advertising space in each of its text messages … to spread brand awareness” of other companies’ products and services. She also alleged that Anthem’s support of AHA was intended to enhance Anthem’s positive visibility with consumers in order to “increas[e] its bottom line.” The court disagreed – the text messages did not disseminate information about purchasing insurance, and links to CPR course providers (whether for-pay or free) did not convert the texts into commercial messages.
    • Reese‘s argument was reminiscent of a theory espoused in another TCPA case involving charities and their for-profit business associates, Spiegel v. Reynolds (click here for more on that case). In Spiegel, the plaintiff claimed that the professional charity fundraiser could not qualify for the TCPA’s nonprofit exemption because the fundraiser was seeking to “line its pockets” more than service the charity. That argument failed in Spiegel, and it failed here in Reese too. Nonprofit organizations frequently contract with for-profit companies, to their mutual benefit. Courts – correctly – appear hesitant to ascribe a sinister profit motive to these arrangements such that their conduct would constitute commercial telemarketing under the TCPA.

  Spiegel and Reese demonstrate that plaintiffs (and their lawyers) are ready to push the boundaries of the TCPA’s treatment of nonprofit organizations. Charities and for-profit companies that work together as part of a commercial co-venture or other socially conscious branding arrangement should be mindful of this as they devise outreach programs via text and call campaigns to consumers and potential donors.