It is widely known that a single call or text message cannot violate the TCPA’s DNC provision (although it may violate the TCPA’s regulated technology provisions.) Under the DNC rules a marketer must make two solicitations within a 12 month period to the same called party to be sued.

It has been repeatedly held that attempted calls constitute solicitations, however, so long as the purpose of the attempt was to make a solicitation. But in Weingrad v. Top Healthcare Options, 2024 WL 4228149 (E.D. Pa Sept. 17, 2024) the court disagreed and held only answered calls can be solicitations.

In Weingrad the Top Healthcare made nine calls to the Plaintiff. But Plaintiff only answered one of those calls. For that reason alone the court held the DNC claim must be dismissed:

Top Healthcare Options placed nine calls to Mr. Weingrad. 30 But Mr. Weingrad only answered one of these calls. 31 Mr. Weingrad does not allege more than one telephone solicitation within a twelve-month period. He does not presently allege Top Healthcare Options violated the Telephone Consumer Protection Act.

Wow.

Definitely keep this in mind where a Plaintiff claims DNC violations based upon attempted calls that were not actually answered.

The Court also refused to credit Plaintiff’s allegations that the purpose of the calls was for marketing purposes without clear factual allegations to that effect (merely saying “the purpose of the calls was to sell health insurance” was not enough.)

Really good opinion here that defense attorneys need to keep in their back pocket!