In a decision, the Federal Communications Commission determined that unsolicited telemarketing calls to a consumer did not violate the Telephone Consumer Protection Act because the messages were intended for current customers – not as solicitations to obtain new customers.

Russ Smith, a New Jersey resident, subscribed to Verizon local service and asked to be placed on the company’s internal do-not-call list.

But he filed a formal complaint against Verizon after receiving multiple telephone solicitations. The calls were recorded messages regarding promotions the company was running for Verizon’s long distance service. For example, one message began, “Hello. This is Verizon Long Distance calling with a special reminder for valued customers like you. Don’t forget that you’ll receive 60 free domestic long distance minutes on Sunday, July Fourth.”

Smith claimed that the company violated multiple provisions of the TCPA by making the calls and by failing to properly record his requests to be placed on the company’s internal do-not-call list.

Verizon argued that the messages did not constitute “telephone solicitations” under the Act because they were sent to current Verizon customers as a form of goodwill and that Smith received the calls in error.

The Commission agreed.

“Section 227(a)(3) defines a ‘telephone solicitation’ 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.’ Verizon denies that its purpose was to encourage the purchase of services, arguing that the messages at issue were intended to be sent only to current Verizon customers. The specific language used in the messages is consistent with that explanation. For instance, the . . . message refers to ‘a special reminder for valued customers like you,’ ‘your account,’ and ‘[t]hanks again for your business,’ language that appears to be directed to current Verizon Long Distance customers rather than the general public or potential new customers. . . . Moreover, nothing in the messages expressly encourages the purchase of any services. The fact that the messages contain no information about how to contact Verizon to take advantage of the offer further suggests that they were not intended as solicitations,” the Commission said.

The FCC determined that Verizon did violate the rules by failing to record Smith’s company-specific do-not-call request, and it declined to award him any damages.

Smith failed to demonstrate that he received any unlawful telephone solicitations resulting from the violation, the Commission said, and an award of damages would essentially be an award of attorneys’ fees and costs, which the Commission’s rules do not allow.

Why it matters: The FCC does not decide many formal complaints, so the decision is a rare one from the Commission. The FCC’s view of what constitutes a “telephone solicitation” will make it harder for a complainant to prove a violation, depending on the language used in the solicitation message. In the Smith case, the Commission relied heavily upon the text of Verizon’s message, which it found to be nonactionable because although the call was unsolicited, the consumer failed to show that the purpose of the call was to encourage the purchase of goods or services.