Telemarketing or Informational? Defending Dual-Purpose Calls and Texts

A call or text that pairs a customer-service message with a sales pitch is usually treated as marketing under the Telephone Consumer Protection Act. That label decides what consent the sender needed and whether the Do Not Call Registry rule applies, so I’d treat it as the first question in any TCPA case. Courts ask why the message was sent, not what the company called it. A business whose messages stayed tied to a transaction the customer started may have a stronger defense than the complaint suggests.

Which definitions decide whether a message is marketing?

Three overlapping definitions do the work, and they differ.

The statute 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,” in 47 U.S.C. § 227(a)(4). It then carves out messages sent with the recipient’s prior express invitation or permission, messages within an established business relationship, and messages from tax-exempt nonprofits. This definition controls the Do Not Call Registry and quiet-hours rules.

The FCC’s regulation uses the same words to define telemarketing but drops the carve-outs, in 47 C.F.R. § 64.1200(f)(13). So a call to an existing customer can fall outside the solicitation definition and still be telemarketing.

The third term, advertisement, means “any material advertising the commercial availability or quality of any property, goods, or services,” under § 64.1200(f)(1). Its text focuses on content, though the Ninth Circuit also weighs context and purpose.

Why does the label change a company’s exposure?

Because the written-consent rule and the Do Not Call Registry rule apply only to marketing.

An autodialer, in the TCPA’s narrow sense, is equipment that can store or produce numbers using a random or sequential number generator and dial them. A prerecorded call uses a recorded or artificial voice. Under § 64.1200(a), a non-marketing autodialed or prerecorded call to a cell phone needs prior express consent, which is ordinary permission to be called at that number. A call that “includes or introduces an advertisement or constitutes telemarketing” needs prior express written consent, with narrow exceptions for tax-exempt nonprofits and HIPAA health-care messages. Written consent means a signed agreement, with specific disclosures, authorizing marketing calls to a stated number. A company calling its own customers can often show the first kind, because customers hand over their numbers to get service, but the second kind is much harder to prove for every number on a list.

The Do Not Call rules mostly follow the same split. The National Do Not Call Registry is the federal list of numbers whose owners don’t want sales calls, and § 64.1200(c) bars “any telephone solicitation” to those numbers. The internal do-not-call list rule in § 64.1200(d) covers “any call for telemarketing purposes,” and it also covers prerecorded informational calls to residential lines made under the exemptions in § 64.1200(a)(3). A purely informational text to a Registry number isn’t a Registry violation.

Informational doesn’t mean consent-free. A prerecorded reminder to a cell phone still needs prior express consent, which is what wrong-number claims turn on. But ordinary consent is far easier to prove than a signed agreement for every number in a class. The written-consent rule is also under pressure. In February 2026, the Fifth Circuit held that the statute requires only prior express consent, oral or written, for autodialed or prerecorded calls to cell phones, telemarketing calls included, contrary to the FCC’s written-consent rule, as discussed in our post on oral consent for prerecorded calls. I wouldn’t build a California defense on that ruling alone, since it binds only the Fifth Circuit.

What makes a call or text dual purpose?

A message is dual purpose when it carries a real service purpose and a sales purpose at once, and the FCC treats most of them as marketing.

The FCC’s 2003 TCPA Report and Order described dual-purpose calls in its record: mortgage brokers telling clients about lower rates, phone companies describing new calling plans, card issuers offering overdraft protection. Those calls “would, in most instances, constitute” unsolicited advertisements “regardless of the customer service element to the call.” The order went on: “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.” The order also said the prerecorded-message rule “should turn, not on the caller’s characterization of the call, but on the purpose of the message.”

That order’s weight has changed. After McLaughlin Chiropractic Associates v. McKesson Corp., district courts in enforcement proceedings “should interpret the TCPA under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” I think a defendant should preserve the argument that the dual-purpose gloss reaches past the statute’s text. In California federal courts, though, it meets Chesbro, which adopted the FCC’s view, and Coffey, which reached a similar one-purpose reading of telephone solicitation from the statute’s text. So it can’t be the whole defense.

How did the Ninth Circuit decide Chesbro v. Best Buy?

It held that reward-program calls were marketing even though they never named a product.

In Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012), Best Buy placed prerecorded calls to Reward Zone members’ homes, one reminding them that reward certificates were about to expire and another announcing program changes. Best Buy called them informational courtesy calls and won summary judgment, but the Ninth Circuit reversed. The court wrote, “We approach the problem with a measure of common sense.” The calls urged members to redeem points usable only on more Best Buy purchases and thanked them for shopping there.

The court held: “Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.” It added, “Any additional information provided in the calls does not inoculate them.” The calls were unsolicited advertisements, telephone solicitations, and telemarketing.

Chesbro deferred to the FCC’s 2003 order, which neither party challenged, under the deference law of its day. On June 4, 2026, the Ninth Circuit built on it in Coffey v. Fast Easy Offer, LLC, reversing the dismissal of a putative class action over calls and texts to a number on the Registry. The complaint alleged that a home-buying company’s messages fed leads to brokerage services offered by the company and an affiliated Keller Williams office. Crediting those allegations, the court held that “one purpose for which Defendants initiated these messages was to encourage the purchase of real estate brokerage services. That is enough to satisfy the statutory definition.” Coffey came at the pleading stage, so the facts remain open. But in this circuit, a message can be a telephone solicitation if any one purpose behind sending it was to encourage a purchase.

When do courts treat a message as informational?

When everything in it serves a transaction the customer already started.

The clearest Ninth Circuit example is Phan v. Agoda Co., an unpublished 2020 decision. After the plaintiff made reservations through Agoda, Agoda texted booking confirmations that invited him to manage the booking in Agoda’s free app, with a download link. He argued the link advertised a product. Affirming summary judgment for Agoda, the court quoted a 2006 FCC order for the point that messages that “facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements.” It held: “A text message confirming that transaction is not advertising.” The app link passed because the app, like the website, managed existing bookings. The court added that “The texts at issue here did not reference any other good or service Agoda offered.” Our post on abandoned-cart and order texts applies that line to an online store’s messages.

Phan isn’t binding, but the contrast is useful. Best Buy’s calls pointed the customer toward the next purchase, while Agoda’s text pointed back to the one already made.

That’s the line I’d draw. If every sentence and link serves what the customer already bought or booked, the message has a strong claim to being informational. Once one line points to something new to buy, plan on defending it as marketing.

Are free offers and free inspections telemarketing?

Often, if the free item leads to a sale.

The 2003 order said that “Offers for free goods or services that are part of an overall marketing campaign to sell property, goods, or services constitute” advertising. One of the order’s examples, which it called an unsolicited advertisement, was a recorded message about a company that would be in the listener’s area to do home repairs and asked the listener to call to learn more. I’d treat a free roof, pest, or HVAC inspection offered to sell the repair as marketing, and Coffey’s one-purpose reading points the same way. The Seventh Circuit did note a California federal decision treating texts that only invited the recipient to schedule free services differently.

The Seventh Circuit offers help when nothing is for sale to the person contacted. In Hulce v. Zipongo Inc., 132 F.4th 493 (7th Cir. 2025), a nutrition company contacted a Medicaid plan member about services free to him. Over a dissent, the court held that a telephone solicitation “requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services,” and affirmed summary judgment for the company. It also cautioned: “Do not overread our decision to create a sweeping loophole within the prohibition of telephone solicitations.”

Hulce has limits. It binds only the Seventh Circuit, though the Ninth Circuit in Coffey noted its holding without disagreeing, and the parties there accepted that the purchase encouraged must be by the recipient. Coffey adds that any one purpose to encourage the recipient to buy is enough, so Hulce helps only where nothing is for sale to the recipient at all. Hulce also construed telephone solicitation, not advertisement, and noted the two definitions differ. So a free offer outside the Do Not Call rules can still be an advertisement for the prerecorded-call consent rules. Hulce fits a service that’s free to the recipient and stays free, not a free consultation that leads to a paid one.

Which claims turn on the marketing label?

The Do Not Call claims also require “more than one telephone call within any 12-month period by or on behalf of the same entity,” under § 227(c)(5). Reclassifying even one message can leave a plaintiff short of two.

How do you keep a reminder or account text informational?

Write each message for one purpose, and keep proof of it.

Run transactional and promotional messages as separate programs, with separate templates and, where the platform allows, a separate sender number, so that a promotional consent problem can’t spill into the confirmation stream.

Confirmations, delivery updates, appointment reminders, and payment notices should carry only what the customer needs for that transaction, with links to the order or account, not a sale page. Leave out coupon codes, new-product mentions, and loyalty-point nudges. Chesbro is the warning on that last one. If a message is meant to sell, treat it as marketing from the start. Healthcare providers have a separate exemption for some patient messages, covered in our post on the TCPA healthcare exemption. Our post on TCPA risk for car dealerships applies this to service reminders and recall notices.

Purpose is the legal test, so expect plaintiffs to ask how a campaign was labeled in the texting platform and how the marketing team measured its results against sales. A reminder program described internally as a revenue driver hands the other side its purpose evidence, although Hulce held that marketing job titles and casual emojis couldn’t change the result where nothing was for sale to the recipient. I’d have compliance tag every template as transactional or promotional at approval, with a one-line reason, and keep those approvals.

When a dual-purpose claim arrives

1. Put a litigation hold on the call and text logs, the platform data, and the consent records for every number in the claim.
2. Pull the internal do-not-call and opt-out logs for those numbers, with dates.
3. Pull the Registry scrub records for the campaigns involved and the version dates used.
4. Collect the exact templates and call scripts, campaign approvals and internal labels, vendor contracts, and any recorded or AI-voice audio.
5. Talk to a lawyer before responding to a demand letter, contacting the claimant, or offering anything to settle.

For claims involving reminder and account messages alleged to be telemarketing, the firm’s California TCPA defense page sets out what the defense looks at first.

Questions about informational and marketing messages

Is an appointment reminder telemarketing?

Usually not, if it only confirms the appointment the customer booked. A reminder giving the date and time, with a way to reschedule, serves an existing transaction. The risk rises when it adds an upsell, such as a discounted add-on. Under Chesbro’s common-sense test, that one line can change how a court classifies the whole message.

Does adding a coupon to a service text make it marketing?

It can. A coupon is an invitation to buy, and Chesbro held that a call doesn’t have to name a product to be marketing when the sales purpose is clear from context. A business that wants to send coupons should send them through the promotional stream, with written consent where the message is autodialed or prerecorded, and keep them out of every confirmation and alert.

Does an existing customer relationship protect a dual-purpose call?

Partly. An established business relationship, which generally means a purchase or transaction within the past 18 months or an inquiry within the past three months, takes a call outside the definition of telephone solicitation, which matters for the Registry and quiet-hours rules. It doesn’t appear in the definition of telemarketing, and the written-consent rule for autodialed or prerecorded marketing has no existing-customer exception. The relationship also ends once the customer asks the company to stop calling, even if the customer keeps doing business with it.

Defending a dual-purpose message claim

If your company is accused of sending marketing calls or texts that it treated as reminders or account notices, the message templates and the records showing why each campaign was sent often matter most. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving reminder and account messages alleged to be telemarketing. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR through June 5, 2026. The FCC’s dual-purpose discussion is in its 2003 Report and Order, FCC 03-153, 18 FCC Rcd. 14014 (2003), paragraphs 139 to 142.

The court decisions are McLaughlin Chiropractic Associates v. McKesson Corp., 606 U.S. 146 (2025); Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012); Coffey v. Fast Easy Offer, LLC, No. 25-4066 (9th Cir. June 4, 2026); Phan v. Agoda Co., No. 19-15015 (9th Cir. Mar. 17, 2020) (unpublished); and Hulce v. Zipongo Inc., 132 F.4th 493 (7th Cir. 2025).

This post is general information about the Telephone Consumer Protection Act and related laws as of June 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.