FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CHESBRO , No. 11-35784
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-00774-RAJ
BEST BUY STORES, L.P., ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
August 8, 2012—Seattle, Washington
Filed October 17, 2012
Amended December 27, 2012
Before: John T. Noonan, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Order;
Opinion by Judge Noonan
2 CHESBRO V . BEST BUY STORES., L.P.
SUMMARY*
Telephone Consumer Protection Act
The panel amended its opinion filed on October 17, 2012,
reversed the district court’s summary judgment in favor of
Best Buy Stores, and remanded in this class action, alleging
that a series of automated telephone calls placed to plaintiff’s
home by Best Buy Stores violated the Telephone Consumer
Protection Act of 1991 and the Washington Automatic
Dialing and Announcing Device Act.
The panel determined that the calls were aimed at
encouraging listeners to engage in future commercial
transactions with Best Buy Stores to purchase its goods. The
panel held that the calls constituted unsolicited
advertisements, telephone solicitations, and telemarketing
within the meaning of the Telephone Consumer Protection
Act, the Washington Automatic Dialing and Announcing
Device Act, and the Washington Consumer Protection Act.
COUNSEL
Kimberlee L. Gunning and Beth E. Terrell, Terrell Marshall
Daudt & Willie PLLC, Seattle, Washington; Rob Williamson
and Kim Williams, Williamson & Williams, Bainbridge
Island, Washington, for Plaintiff-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHESBRO V . BEST BUY STORES., L.P. 3
Anne M. Lockner, Robins, Kaplan, Miller & Ciresi L.L.P.,
Minneapolis, Minnesota, for Defendant-Appellee.
ORDER
The opinion filed on October 17, 2012 is amended as
follows:
Slip op. at 12572, 2nd full ¶, lines 1–4: Replace with
Slip op. at 12572, 2nd full ¶, lines 5–6: Delete
Slip op. at 12573, 2nd full ¶, lines 6–8: Replace with
Slip op. at 12573, last ¶, lines 3–5: Replace with
OPINION
NOONAN, Circuit Judge:
Michael Chesbro, on behalf of himself and a class of
similarly situated plaintiffs, argues that a series of automated
telephone calls placed to his home by Best Buy violated the
Telephone Consumer Protection Act of 1991 (“TCPA”),
47 U.S.C. § 227, and the Washington Automatic Dialing and
Announcing Device Act (“WADAD”), Wash.Rev.Code
§ 80.36.400. The district court granted summary judgment in
Best Buy’s favor. We reverse and remand for further
proceedings.
Factual and Procedural History
Plaintiff Michael Chesbro purchased a computer from
Best Buy in 2008. At the time of the purchase, he signed up
for a no-interest payment plan to finance the cost of the
computer. He filled out paperwork and provided his contact
information, including his telephone number. The parties
dispute whether, at the time of purchase and when opting for
the credit plan, Chesbro enrolled in Best Buy’s Reward Zone
Program (“RZP”). Best Buy claims that it obtained his
signature; Chesbro maintains that, if so, he did not know that
he was being enrolled in the RZP or know what the RZP was.
CHESBRO V . BEST BUY STORES., L.P. 5
The RZP allows customers to earn points toward
certificates – coupons with a $5 value for every $250 spent –
that can be applied toward future purchases at Best Buy. Best
Buy contends that, as an RZP member, Chesbro consented to
the terms of the RZP Privacy Policy, which authorizes Best
Buy to contact program members with program-related
communications. Best Buy states that, though RZP members
may opt out of receiving marketing communications
regarding the program, Best Buy may still contact members
with program-related communications, such as membership
information.
Chesbro received many automated “robot” calls from
Best Buy following his July 2008 computer purchase. He
estimates that he received “more than five, less than a dozen”
calls from Best Buy during this period; he could identify the
caller from the caller identification feature on his phone.
During the period at issue, Chesbro maintains that he was
registered on the national “Do Not Call” (“DNC”) list.
On November 12, 2008, Chesbro complained to the
Washington Attorney General’s Office (“AGO”) regarding a
call that he received on November 11. Best Buy concedes
that it made this November 11 automated call but argues that
the call was a courtesy message alerting Chesbro to the
looming expiration of his RZP certificates. The undisputed
script of the call is as follows:
Hello, this is Andrea from Best Buy
Reward Zone calling for (Recipient’s first and
last name) to remind you that your Reward
Certificates are about to expire. (Certificate
amount) dollars in Reward Certificates were
mailed to you on (Mail date) and they will
6 CHESBRO V . BEST BUY STORES., L.P.
expire if not used by (Expiration Date). If you
do not have your reward certificates, you can
re-print them online at myrewardzone.com.
Thank you for shopping at Best Buy.
Chesbro maintains that, before filing his AGO complaint,
he communicated his desire to opt out by following the
prompts on the automated touch-tone dialing system.
Chesbro also called the Best Buy store and asked to be put on
Best Buy’s internal DNC list. The customer service
representatives with whom he spoke stated that they did not
know what phone calls he was talking about. Chesbro
specifically asked for all marketing calls to cease. In
response to the complaint filed with the AGO, Best Buy
agreed to place Chesbro on its DNC list.
Seven months later, in June 2009, Chesbro received
another automated phone call from Best Buy with script as
follows:
This is a very important message
regarding the Best Buy Reward Zone
program. We’re making some changes to
increase the security of the program and be
more environmentally friendly. Please listen
to the entire message and then go to
MyRewardZone.com for details and to update
your membership.
The following changes take effect October
31st, 2009:
CHESBRO V . BEST BUY STORES., L.P. 7
• First, to help reduce paper use, reward
certificates will only be available by
logging onto MyRewardZone.com.
• Second, reward certificates will no longer
be transferable.
• Lastly, for the following three conditions,
points will be cashed out to the $5 level
and the remaining points will be forfeited:
• You will need to provide an e-mail
address at MyRewardZone.com.
Members who haven’t provided an
e-mail address will no longer be
eligible to participate in the program.
• Reward Zone is becoming an annual
program, which means that points no
longer roll over from year-to-year[.]
• You will need to make 1 purchase
every 12 months to remain in the
program[.]
For full details and to make sure you’re
ready for these changes, go to
MyRewardZone.com.
If you would like to hear this message
again, press 9.
Thank you for your time – and for being a
valued Reward Zone program member.
8 CHESBRO V . BEST BUY STORES., L.P.
Chesbro filed a class-action complaint in Washington
state court alleging federal and state violations. Best Buy
removed the case to federal court under the Class Action
Fairness Act of 2005, 28 U.S.C. § 1453, asserting an amount
in controversy exceeding $5,000,000. Best Buy filed a
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c), which the court converted into a
motion for summary judgment under Rule 12(d). The court
denied Chesbro’s motion for a continuance under Rule 56(d)
and granted summary judgment in Best Buy’s favor. This
appeal followed.
We review a grant of summary judgment de novo. See
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc). We determine “whether, viewing the evidence in the
light most favorable to the nonmoving party, there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Id.
TCPA Claims
The TCPA makes it unlawful “to initiate any telephone
call to any residential telephone line using an artificial or
prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call is initiated
for emergency purposes or is exempted by rule or order by
the Commission under paragraph (2)(B).” 47 U.S.C.
§ 227(b)(1)(B). The parties do not dispute that these were
prerecorded calls to a residential telephone line.
Paragraph (2)(B) provides that the Federal
Communications Commission (“FCC”) may exempt non-
commercial calls and “such . . . calls made for commercial
purposes as . . . (I) will not adversely affect the privacy rights
CHESBRO V . BEST BUY STORES., L.P. 9
that this section is intended to protect; and (II) do not include
the transmission of any unsolicited advertisement.”
47 U.S.C. § 227(b)(2)(B)(ii). “‘[U]nsolicited advertisement’
means any material advertising the commercial availability or
quality of any property, goods, or services which is
transmitted to any person without that person’s prior express
invitation or permission . . . .” 47 U.S.C. § 227(a)(5).
Pursuant to its delegated authority, the FCC has exempted
from the general prohibition on automated commercial calls
those that both “do[] not include or introduce an unsolicited
advertisement or constitute a telephone solicitation[,]”
47 C.F.R. § 64.1200(a)(2)(iii) (2011) (amended 2012), and do
not adversely affect the privacy rights of the called party, see
In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 18 FCC
Rcd. 14014, 14095 ¶ 136, 2003 WL 21517853 (F.C.C. July
3, 2003) (“2003 Report and Order”). The FCC has
determined that so-called “dual purpose” calls, those with
both a customer service or informational component as well
as a marketing component, are prohibited. See 2003 Report
and Order at 14097–98 ¶¶ 140–142. The FCC explains:
The so-called “dual purpose” calls
described in the record–calls from mortgage
brokers to their clients notifying them of
lower interest rates, calls from phone
companies to customers regarding new calling
plans, or calls from credit card companies
offering overdraft protection to existing
customers–would, in most instances,
constitute “unsolicited advertisements,”
regardless of the customer service element to
the call. The Commission explained in the
10 CHESBRO V . BEST BUY STORES., L.P.
2002 Notice that such messages may inquire
about a customer’s satisfaction with a product
already purchased, but are motivated in part
by the desire to ultimately sell additional
goods or services. If the call is intended to
offer property, goods, or services for sale
either during the call, or in the future (such as
in response to a message that provides a
toll-free number), that call is an
advertisement.
Id. ¶ 142 (footnote omitted).
Neither party argues that the interpretation set forth in the
2003 Report and Order is unreasonable or otherwise not
entitled to this court’s deference. We agree that our
deference is due. See Satterfield v. Simon & Schuster, Inc.,
569 F.3d 946, 952–54 (9th Cir. 2009) (affording deference
under United States v. Mead Corp., 533 U.S. 218 (2001), and
Skidmore v. Swift & Co., 323 U.S. 134 (1944), to the FCC’s
interpretation, as set forth in its 2003 and 2004 Reports, of
what constitutes a “call”).
Finally, the regulations contain a DNC provision stating:
“Persons or entities making calls for telemarketing purposes
. . . must honor a residential subscriber’s do-not-call request
within a reasonable time . . . .” 47 C.F.R. § 64.1200(d)(3)
(2011) (amended 2012). “[T]elemarketing means 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.” 47 C.F.R. § 64.1200(f)(10) (2011) (amended 2012).
CHESBRO V . BEST BUY STORES., L.P. 11
“[A]pplication of the prerecorded message rule should
turn, not on the caller’s characterization of the call, but on the
purpose of the message.” 2003 Report and Order at 14098
¶ 141 (footnote omitted). We thus turn to the calls at issue to
determine whether they demonstrate a prohibited advertising
purpose.
Best Buy argues that its calls were purely informational
courtesy calls to RZ members. It further maintains that,
because the scripts did not explicitly reference any property,
goods, or services within the meaning of 47 U.S.C.
§ 227(a)(5), the calls did not run afoul of the TCPA and its
implementing regulations. We disagree.
We approach the problem with a measure of common
sense. The robot-calls urged the listener to “redeem” his
Reward Zone points, directed him to a website where he
could further engage with the RZP, and thanked him for
“shopping at Best Buy.” Redeeming Reward Zone points
required going to a Best Buy store and making further
purchases of Best Buy’s goods. There was no other use for
the Reward Zone points. Thus, the calls encouraged the
listener to make future purchases at Best Buy. Neither the
statute nor the regulations require an explicit mention of a
good, product, or service where the implication is clear from
the context. Any additional information provided in the calls
does not inoculate them. See 2003 Report and Order ¶ 142.
Any assertion that the calls were not “unsolicited
advertisements” because the statutory definition of that term
excludes communications made with the recipient’s “prior
express invitation or permission” is unsupported by the
record, which shows, instead, that Chesbro repeatedly asked
not to be called.
12 CHESBRO V . BEST BUY STORES., L.P.
Because the calls encouraged recipients to engage in
future purchasing activity, they also constituted telemarketing
under the DNC regulation. See 47 C.F.R. §§ 64.1200(d)(3),
(f)(10)(2011).
Washington Claims
The WADAD similarly prohibits using an automatic
dialing and announcing device “for purposes of commercial
solicitation.” Wash. Rev. Code § 80.36.400(2) (2012).
“Commercial solicitation means the unsolicited initiation of
a telephone conversation for the purpose of encouraging a
person to purchase property, goods, or services.” Wash. Rev.
Code § 80.36.400(1)(b). A violation of the WADAD is
automatically a violation of the Washington Consumer
Protection Act (“WCPA”). See Wash. Rev. Code
§ 80.36.400(3).
Washington’s DNC provision prohibits for one year the
telephone solicitation of anyone who indicates that he or she
does not want to be called. See Wash. Rev. Code
§ 80.36.390(3)(a). The definition of “telephone solicitation”
is nearly identical to that of “commercial solicitation”
discussed above. Compare Wash. Rev. Code § 80.36.390(1)
with Wash. Rev. Code § 80.36.400(1)(b).
We have no guidance from the Washington courts on how
Washington interprets these provisions. The text of the
WADAD is substantially similar to its federal counterpart, as
is its purpose. See Wash. Rev. Code § 80.36.400 notes
(1986). We therefore apply the same reasoning as discussed
above and reverse the district court’s grant of summary
judgment to Defendant as to Plaintiff’s claims under the
WADAD, WCPA, and Washington’s DNC provision.
CHESBRO V . BEST BUY STORES., L.P. 13
Rule 56 Claim
In light of our reversal, we need not reach Chesbro’s
remaining claim regarding the denial of a continuance.
In sum, these calls were aimed at encouraging listeners to
engage in future commercial transactions with Best Buy to
purchase its goods. They therefore constituted unsolicited
advertisements, telephone solicitations, and telemarketing
within the meaning of the TCPA, the WADAD, and the
WCPA.
REVERSED and REMANDED.