Schwartz v. The Hall Insurance Group Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL R. SCHWARTZ, Case No. 1:23-cv-374

Plaintiff, Litkovitz, M.J.

v.

THE HALL INSURANCE GROUP, INC., ORDER

Defendant.

Plaintiff Michael Schwartz brings this pro se action against defendant The Hall Insurance

Group, Inc. (thereafter referred to as HIG) alleging causes of action under the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 and state law. (Doc. 1). This matter is

before the Court on defendant’s motion for summary judgment (Doc. 43), and plaintiff’s

memorandum in opposition (Doc. 49).

I. Plaintiff’s complaint

Plaintiff’s complaint alleges that defendant is an insurance company that markets and

sells Medicare supplement plans, Medicare Advantage plans, and other insurance products

throughout the United States. Plaintiff alleges that between June 16 and December 31, 2022,

plaintiff received two unsolicited “telemarketing calls” and one “text message” from defendant

“all through the use of an automated system for the selection or dialing of telephone numbers”

despite plaintiff’s cellular number being listed on the National Do Not Call Registry. (Doc. 1 at

PAGEID 13). Plaintiff alleges that on June 16, 2022, he answered a phone call from defendant

and after hearing a “prerecorded message, Plaintiff was transferred to and spoke with

Defendant’s employee, Rose Greene” who said, “Hi, this is Rose reaching out to you.” (Id.).

Plaintiff alleges he “never provided the Defendant with any form of consent, including express

written consent that authorized Defendant to transmit telephonic sales calls to Plaintiff’s cellular

telephone number utilizing an automated system for the selection or dialing of telephone

numbers.” (Id. at PAGEID 14). Plaintiff alleges he “is not and has never been eligible for

Medicare” and “never asked to be contacted about Medicare and has never requested contact

from The Hall Insurance Group.” (Id.).

Plaintiff’s complaint outlines seven claims against defendant relating to three

telecommunications contacts: Count I for violation of 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA,

Count II for “knowing and/or willful” violations of the TCPA under 47 U.S.C. § 227(b)(3)(B)1,

Count III for violation of Ohio Rev. Code § 4719.02(A) – failure to register as a telephone

solicitor, Count IV for violation of Ohio Rev. Code § 4719.02(D) – failure to maintain an Ohio

resident statutory agent, Count V for violation of Ohio Rev. Code § 4719.06(A) – failure to

disclose required information, Count VI for violation of Ohio Rev. Code § 1345.02(A) –

engaging in unfair or deceptive acts or practices (deceptive statement), and Count VII for

violation of Ohio Rev. Code § 1345.02(B)(9) – deceptive claim of “sponsorship, approval, or

affiliation.”

II. Summary Judgment Standard

A motion for summary judgment should be granted if the evidence submitted to the Court

demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of

summary judgment is proper unless the nonmoving party “establish[es] genuinely disputed

material facts by ‘citing to particular parts of materials in the record . . . or . . . showing that the

1 This is a damages provision related to the first count. Plaintiff references the discretion granted to the court to

grant treble damages under the TCPA’s private right of action, which states, “If the court finds that the defendant

willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in

its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available

under subparagraph (B) of this paragraph.” 47 U.S.C.A. § 227(b)(3)(B).

materials cited do not establish the absence . . . of a genuine dispute.’” United Specialty Ins. Co.

v. Cole’s Place, Inc., 936 F.3d 386, 403 (6th Cir. 2019) (quoting Fed. R. Civ. P. 56(c)(1)). The

Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable

to the non-moving party. Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002); Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v.

OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

The trial judge’s function is not to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at

249. The trial court need not search the entire record for material issues of fact, Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

“Where the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587. A fact is

“material” if its resolution will affect the outcome of the lawsuit. Beans v. City of Massillon, No.

5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff’d, 706 F. App’x 295 (6th

Cir. 2017) (citing Anderson, 477 U.S. at 248). The party who seeks summary judgment “bears

the initial responsibility of informing the district court of the basis for its motion, and identifying

those portions of [the record] which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp., 477 U.S. at 322. To make its determination, the court “need

consider only the cited materials, but it may consider other materials in the record.” Fed. R.

Civ. P. 56(c)(3). “Self-serving affidavits, alone, are not enough to create an issue of fact

sufficient to survive summary judgment.” Wolfe v. Village of Brice, Ohio, 37 F. Supp. 2d 1021,

1026 (S.D. Ohio 1999) (citing Anderson, 477 U.S. at 251 and Copeland v. Machulis, 57 F.3d

476, 479 (6th Cir. 1995)). The party opposing a properly supported motion for summary

judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set

forth specific facts showing that there is a genuine issue for trial.” First Nat’l Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 288 (1968).

III. Evidence presented

Defendant presents the affidavit of Melissa Hall, statutory agent for defendant, to its

motion for summary judgment (Doc. 43-1, Melissa Hall Aff., at PAGEID 213-16), as well as

plaintiff’s responses to defendant’s discovery requests. (Doc. 49-1, Ex. 3). Plaintiff does not

include an affidavit with his memorandum in opposition to summary judgment but does include

copies of defendant’s responses to plaintiff’s discovery requests. (Doc. 49-1, Ex. H). Plaintiff

also attached additional exhibits that do not relate directly to the facts at issue in defendant’s

summary judgment motion. (Doc. 49-1, Exs. I, J, K, L).

Affidavit of Melissa Hall

Ms. Hall avers HIG “sells a variety of insurance products, including primarily Medicare

health insurance supplements, and is licensed to do business in Texas and other [s]tates” but

“excluding Ohio.” (Doc. 43-1, Melissa Hall Aff., at PAGEID 213: ¶¶ 2-3). On or about March

31, 2022, defendant “purchased 3,583 leads from LRG Media Group, Inc. doing business as The

Leads Warehouse” containing “contact information for potential customers who expressly

requested information concerning Medicare insurance supplements,” and those leads were only

supposed to contain contact information for individuals residing in states where HIG was

licensed to sell insurance. (Doc. 43-1, Melissa Hall Aff., at PAGEID 214: ¶ 3). The Leads

Warehouse represented to HIG that the leads were generated by requests for information “about

Medicare supplements entered on a partner website at www.securemedicareenrollment.com”2

(Doc. 43-1 at PAGEID 213-14: ¶ 4), where the following disclaimer was posted above the button

for submission:

This is a solicitation for insurance. By clicking the “Submit” button below you

acknowledge and agree to our Privacy Policy and Terms of Service, and are

providing your express written consent by electronic signature to be contacted by

Secure Medicare Enrollment and our Marketing Partners via: automated telephone

dialing systems, artificial or prerecorded voices, by email, SMS text message or

live agent to the phone number provided, even if my telephone number is a mobile

number that is currently listed on any state, federal or corporate '”Do Not Call” list,

regarding telemarketing promotions for products or services (including Medicare

advantage plans, Medicare Part D prescription drug plans, Medicare supplement

insurance plans and/or products that may or may not be covered by your Medicare

insurance but may be of interest to you). Your phone carrier’s message and data

rates may apply. Participating sales agencies represent Medicare Advantage

[HMO, PPO and PFFS] organizations and stand-alone PDP prescription dmg plans

that are contracted with Medicare. Enrollment depends on the plan’s contract

renewal. We do not offer every plan available in your area. Currently we represent

multiple organizations which offer a range of products in your area. Please contact

http://Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance

Program (SHIP) to get information on all of your options. Enrollment in the

described plan type may be limited to certain times of the year unless you qualify

for a Special Enrollment Period. I understand I can revoke this consent at any time

and consent is not required as a condition of purchase.

(Doc. 43-1, Melissa Hall Aff., at PAGEID 214: ¶ 5). According to Ms. Hall, one of the contact

leads supplied by The Leads Warehouse contained the phone number (817-600-6805) for an

individual from Texas named Michael Schwartz and a birth date indicating the individual was

seventy-five years old. (Doc. 43-1, Melissa Hall Aff., at PAGEID 214: ¶ 6). The lead indicated

that Schwartz’s information was entered into the request form on

www.securemedicareenrollment.com on March 7, 2022. (Doc. 43-1, Melissa Hall Aff., at

PAGEID 214: ¶ 6).

Ms. Hall states that HIG “employes a Radius Agency Management System” which

2 Website www.securemedicareenrollment.com was not operational at the time this order was issued.

“possesses only the capacity to dial telephone numbers that have been entered manually” and

“lacks the capacity to use a random or sequential number generator.” (Doc. 43-1, Melissa Hall

Aff., at PAGEID 215: ¶ 7). Ms. Hall definitively claims that HIG “never initiates

telecommunications with potential customers by dialing random telephone numbers or sequential

telephone numbers, but instead initiates telecommunications only with those potential customers

it believes have expressly requested telecommunication.” (Doc. 43-1, Melissa Hall Aff., at

PAGEID 215: ¶ 8). Hall then states, “I manually entered [p]laintiff’s telephone number into the

system, and the system dialed [p]laintiff’s telephone number on or about June 16, 2022, and

again on or about June 20, 2022. The system did not dial [p]laintiff’s telephone number

randomly or with a sequential number generator.” (Doc. 43-1, Melissa Hall Aff., at PAGEID

215: ¶ 9). Ms. Hall continued by stating that once a placed call is answered, the “potential

customer is greeted with a pre-recorded voice (my voice, not an artificial voice) until an agent is

available” (Doc. 43-1, Melissa Hall Aff., at PAGEID 215: ¶ 10), and to the best her knowledge,

“plaintiff answered both calls.” (Doc. 43-1, Melissa Hall Aff., at PAGEID 215: ¶ 9). If an agent

is not available, then the person receiving the call is automatically transferred to HIG’s voicemail

without speaking to a live person. (Doc. 43-1, Melissa Hall Aff., at PAGEID 215: ¶ 10).

According to Ms. Hall, the first call placed to plaintiff was connected to defendant’s

voicemail because HIG “did not have an available agent” but “Rose Greene, an agent for [HIG],

engaged with [p]laintiff personally on the second of the two calls.” (Doc. 43-1, Melissa Hall

Aff., at PAGEID 215: ¶ 11). Ms. Hall claims that Ms. Greene had previously been advised that

plaintiff had “expressly requested the call” (Doc. 43-1, Melissa Hall Aff., at PAGEID 215-16: ¶

12), and plaintiff initially “represented to Ms. Greene that he was a Medicare recipient.” (Doc.

43-1, Melissa Hall Aff., at PAGEID 216: ¶ 13). Ms. Hall claims plaintiff “never inquired of Ms.

Greene how she acquired his number” nor did he inform her that “he had placed his number on

the National Do-Not-Call Registry.” (Doc. 43-1, Melissa Hall Aff., at PAGEID 216: ¶ 14). Ms.

Hall states that Ms. Greene did not make any “offer or inducement to [p]laintiff, and never

discussed with [p]laintiff the price, quality, or availability of goods or services,” nor did plaintiff

“purchase any goods or services” from defendant. (Doc. 43-1, Melissa Hall Aff., at PAGEID

216: ¶ 16-17).3 Ms. Hall claims, “Ms. Greene specifically informed [p]laintiff she was not

making a sales call, but instead she was checking to see if all of the [p]laintiff’s Medicare needs

had been met.” (Doc. 43-1, Melissa Hall Aff., at PAGEID 216: ¶ 17).

Defendant’s Discovery Responses

Defendant states it “purchased a lead, generated from a specific request for additional

information about Medicare supplements, entered on the website

www.securemedicareenrollment.com on or about March 7, 2022, from an individual or entity

that identified himself as Michael Schwartz, residing in Texas, born April 5, 1946, at telephone

number (817) 600-6805, IP address 108.209.28.77.” (Doc. 49-1 at PAGEID 343, Ex. H,

Interrogatory 15 Response). In response to plaintiff’s request for admission no. 7, defendant

“admits in part and denies in part that it did not have [p]laintiff’s permission or consent to place

telephone communications to [p]laintiff’s telephone number” but instead “possessed a good faith

belief that [p]laintiff provided his consent at https://securemedicareenrollment.com.” (Doc. 49-1

at PAGEID 345, Ex. H, Request for Admission 7 Response). Defendant further states that it

“does not possess evidence that [p]laintiff is, in fact, the individual who provided [p]laintiff’s

contact information at https://securemedicareenrollment.com.” (Doc. 49-1 at PAGEID 345, Ex.

H, Request for Admission 7 Response).

3 Defendant appears to be quoting the language of Ohio Rev. Code § 4719.01(7)(b).

Plaintiff’s Discovery Responses

In defendant’s requests to admit propounded to plaintiff, plaintiff was asked to admit that

he did not possess evidence contradicting defendant’s claim that the contact information

defendant purchased from The Leads Warehouse “resulted from a contact request” submitted at

www.securemedicareenrollment.com “from an individual identified as Michael Schwartz.”

(Doc. 43-2 at PAGEID 227, Ex. 3, Request for Admission 1). Plaintiff responded by objecting

and denying based upon defendant’s failure to produce evidence supporting its claim, stating,

“the lack of evidence produced by [d]efendant [in response to plaintiff’s discovery requests] is

evidence that [d]efendant does not have records of obtaining consent required by U.S. law.”

(Doc. 43-2 at PAGEID 227, Ex. 3, Request for Admission 1 Response). Plaintiff was also asked

to admit that if he, or another individual or entity claiming to be plaintiff, “requested a telephone

call concerning supplemental Medicare coverage at www.securemedicareenrollment.com, then

[d]efendant’s telecommunications directed to [plaintiff’s phone number] did not constitute a

‘telephone solicitation’ as defined in the [TCPA].” (Doc. 43-2 at PAGEID 227-28, Ex. 3,

Request for Admission 2). Plaintiff objected to the hypothetical form of defendant’s question

and responded, in part, that he “did not request to be contacted by entering his information into

the website [blank space] nor did [p]laintiff authorize another individual to enter his

information.” (Doc. 43-2 at PAGEID 228, Ex. 3, Request for Admission 2 Response).

IV. Defendant’s motion for summary judgment is granted in part and denied in part.

A. The Telephone Consumer Protection Act

Establishing a claim under the TCPA for calls made to a cellular phone requires the

plaintiff to show that: (1) the defendant made a call to a cellular phone, (2) using an automatic

telephone dialing system (ATDS) or an artificial or prerecorded voice, and (3) without prior

express consent of the called party. Zehala v. Am. Exp., No. 2:10-cv-848, 2011 WL 4484297, at

*5 (S.D. Ohio Sept. 26, 2011) (citing 47 U.S.C. § 227(b)(1)(A)). See also 47 C.F.R. §

64.1200(a)(2) (requiring written consent if the call “introduces an advertisement or constitutes

telemarketing”). Here, it is undisputed that defendant placed at least two calls to plaintiff’s

cellular phone, one on June 16, 2022, and another on June 20, 2024, and one text message to

plaintiff’s cellular phone on June 16, 2022. (Doc. 43-1, Melissa Hall Aff., at PAGEID 215: ¶ 9;

Doc. 49 at PAGEID 318-19, 325, 329). However, the parties disagree over whether defendant

used an ATDS or prerecorded voice, and whether plaintiff consented to the contacts.

i. Use of automatic telephone dialing system

Plaintiff asserts HIG violated 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, which prohibits

“mak[ing] any call (other than a call made for emergency purposes or made with the prior

express consent of the called party) using any automatic telephone dialing system . . . to any

telephone number assigned to a . . . cellular telephone service. . . .” 47 U.S.C. §

227(b)(1)(A)(iii). HIG responds that the Radius Agency Management System it employs

possesses only the capacity to dial telephone numbers that have been entered manually and lacks

the capacity to use a random or sequential number generator. (Doc. 43-1, Melissa Hall Aff., at

PAGEID 214: ¶ 7).

Under the TCPA, “an ‘automatic telephone dialing system’ is a piece of equipment with

the capacity both ‘to store or produce telephone numbers to be called, using a random or

sequential number generator,’ and to dial those numbers.” Facebook, Inc. v. Duguid, 592 U.S.

395, 398-99 (2021) (quoting 47 U.S.C. § 227(a)(1)). “To qualify as an ‘automatic telephone

dialing system,’ a device must have the capacity either to store a telephone number using a

random or sequential generator or to produce a telephone number using a random or sequential

number generator.” Id. at 399. See LaGuardia v. Designer Brands Inc., No. 2:20-cv-2311, 2021

WL 4125471, at *8 (S.D. Ohio Sept. 9, 2021) (quoting Tehrani v. Joie de Vivre Hosp., LLC, No.

19-cv-08168, 2021 WL 3886043, at *4 (N.D. Cal. Aug. 31, 2021) (collecting cases from other

circuits declining to apply Duguid to systems that randomly select numbers to call from a

predetermined list of telephone numbers, when the telephone numbers were not originally

generated or produced by the system itself).

Plaintiff has failed to present evidence creating a genuine issue of fact as to whether HIG

uses an automatic telephone dialing system. Plaintiff appears to place the blame on HIG for not

producing evidence in response to his request for production of documents. He states,

“Defendant did not produce information about the communication system Defendant used to

contact people on the dates Defendant contacted Plaintiff.” (Doc. 49 at PAGEID 324, citing

Doc. 49-1 at PAGEID 348, Ex. H, Request for Production 13). Request for Production 13 states:

Provide information about the technology or service used to send a text message to

Plaintiff’s phone number including the brand name of the technology, a description

of the technology’s use, the date Defendant began and ended use of the text

messaging technology or service, the registered business name of the company that

Defendant employed to use the text messaging technology on its behalf, or the name

of the company that Defendant obtained the text messaging technology from.

Defendant objected to the request, asserting that “[t]his request is not a request for production of

documents, but rather an interrogatory.” (Doc. 49-1 at PAGEID 348). Plaintiff fails to present

any evidence or argument that he requested this information through an interrogatory after

defendant’s objection, and this issue was not the subject of a discovery dispute. Therefore,

plaintiff cannot rely on defendant’s failure to produce evidence about the Radius Agency

Management System used by HIG to contact him. Plaintiff also alleges in his memorandum in

opposition that he viewed a video on the Radius Agency Management System product page and

drew certain conclusions about the product. (Doc. 49 at PAGEID 324, citing

https://help.radiusbob.com/en/articles/2988701-watch-an-overview-of-radius-features). This

website information has not been authenticated under Fed. R. Evid. 901. See Fish v. Stone,

Higgs & Drexler, P.C., No. 2:17-cv-2093, 2017 WL 6757575, at *6 (W.D. Tenn. Dec. 29, 2017)

(website information that is not authenticated cannot be considered on a motion for summary

judgment) (and cases cited therein). See also Weinhoffer v. Davie Shoring, Inc., 23 F.4th 579,

582 (5th Cir. 2022) (authentication of website or electronic source may be made through

“testimony by a witness with direct knowledge of the source”). Even if the website information

had been authenticated, it is inadmissible hearsay evidence. Plaintiff’s purported video evidence

is being offered for the truth of what is stated in the video, i.e., the functionality of the Radius

Management System, and is therefore hearsay. Plaintiff has not established an exception to the

hearsay rule to permit the Court’s consideration of this evidence. Therefore, it cannot be

considered by the Court on summary judgment.

The burden is on plaintiff to present evidence creating a genuine issue of fact on whether

the Radius Agency Management System constitutes an automatic telephone dialing system.

Plaintiff has failed to present competent evidence on this issue. Therefore, defendant’s motion

for summary judgment on plaintiff’s TCPA claim relating to the use of an automatic telephone

dialing system is granted.

ii. Use of prerecorded voice

The parties are generally in agreement that defendant used a prerecorded voice to deliver

a communication at the start of each cellular call stating, “Hello there, friend. You have reached

the office of Medicare Mel. Thank you so much for calling. Please hold the line, and someone

from The Hall Insurance Group will be with you in one moment.” (Doc. 43 at PAGEID 206;

Doc. 49 at PAGEID 325). Defendant admits to using a prerecording of Ms. Hall’s voice for the

greeting before joining the call with a live agent but argues the use of a prerecorded greeting

does not violate § 227(b)(1)(A) because a prerecorded greeting “which is merely a prelude to a

live conversation and lacks any other substantive purpose, does not constitute a telephone ‘call.’”

(Doc. 43 at PAGEID 207). Defendant argues the “greeting” is not a “call” under the TCPA

because it does not attempt to deliver a message or sell products or services. (Id. at PAGEID

205-06). Plaintiff disagrees, arguing that the “purpose of the prerecorded message was to

indicate that [d]efendant could provide a service to called parties” and alleging that defendant

omitted from its motion the final statement of the prerecording: “and remember I can’t help you

if you don’t call.” (Doc. 49 at PAGEID 325).

Defendant has provided no caselaw supporting its position that a prerecorded “greeting”

is not a “call” that violates the TCPA. Defendant appears to suggest that because a “greeting” is

merely a prelude to a live conversation and simply informs the recipient of the caller’s identity

without conveying a substantive message, it does not offend the TCPA. (Doc. 43 at PAGEID

206-07).

Defendant’s interpretation fails under the plain language of the TCPA. The statute

prohibits making “any call . . . using . . . an artificial or prerecorded voice.” 47 U.S.C. §

227(b)(1)(A) (emphasis added). The plain language of the statute makes no distinction based on

the message delivered. Defendant does not dispute that it made calls to plaintiff and that the

calls used a prerecorded voice (that of Ms. Hall’s). In addition, the Court’s own research leads to

the conclusion that defendant’s prerecorded greeting falls within the TCPA prohibitions. In

Throndson v. Huntington Nat’l Bank, No. 2:19-cv-1789, 2020 WL 3448281 (S.D. Ohio June 24,

2020), the plaintiff alleged the defendant creditor violated section 227(b)(1)(A) of the TCPA

when it left two prerecorded voice messages on his cell phone. At issue was whether the

plaintiff had suffered a concrete injury for Article III standing. The Court held the plaintiff

raised a genuine issue of fact on TCPA standing when he testified that the prerecorded

voicemails to his phone were “annoying,” “very irritating,” and a “nuisance,” substantiating the

injury requirement. In making its finding, the Court examined the legislative history of the

TCPA and concluded that “when enacting the TCPA, Congress determined that all prerecorded

calls, regardless of their source or subject matter, were a nuisance and an invasion of privacy.”

2020 WL 3448281, at *6 (emphasis added). “Congress determined that ‘automated telephone

calls that deliver an artificial or prerecorded voice message are more of a nuisance and a greater

invasion of privacy than calls placed by ‘live’ persons.” 2020 WL 3448281, at *8 n.4 (quoting

S. Rep. No. 102-178, at 4–5 (1972) (noting that “automated calls cannot interact with the

customer except in preprogrammed ways” and that, among other concerns, prerecorded or

automated calls “do not allow the caller to feel the frustration of the called party”)). A

prerecorded “greeting” is no different than other types of prerecorded messages in that it still

prevents recipient from interrupting the call or speaking with a live person while it is playing.

Defendant’s attempt to distinguish between a pre-recorded call containing only a greeting and a

prerecorded call delivering a particular message or sales pitch is a distinction without a

difference.

Defendant also cites to language from Federal Communications Commission rulings to

supports its argument that the content of the message relayed by the prerecorded call should be

considered when determining a TCPA violation:

[T]he FCC has opined []the TCPA prohibits initiating “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.” In re Implications

of Artificial Intelligence Technologies on Protecting Consumers from Unwanted

Robocalls and Robotexts, CG Docket No. 24-17, par. 3. (Emphasis added). Further,

such prohibition involves “[generating] call content using a prerecorded voice, Id.

at par. 5 (Emphasis added), and the FCC has specifically referred to “prerecorded

message calls.” Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1318,

citing In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of

1991, 23 FCC Rcd. 559, 564 (F.C.C. 2008). (Emphasis added).

(Doc. 43 at PAGEID 206). The language quoted by defendant – to deliver a message without

prior consent – is taken from 47 U.S.C. § 227(b)(1)(B), which regulates calls to residential

telephone lines. See In the Matter of Implications of A.I. Techs. on Protecting Consumers from

Unwanted Robocalls & Robotexts, No. CG23-362, 2024 WL 519167, at *1 (OHMSV Feb. 8,

2024) (“In relevant part, the TCPA prohibits initiating ‘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 a statutory exception applies or the call is ‘exempted

by rule or order by the Commission under [section 227(b)(2)(B)].’6”, with footnote six citing to

47 U.S.C. § 227(b)(1)(B)). Plaintiff’s statutory claim is brought under 47 U.S.C. § 227(b)(1)(A),

which omits the “to deliver a message” language and applies to calls made to cellular phone

calls. “[I]t is a general principle of statutory construction that when ‘Congress includes

particular language in one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate inclusion or

exclusion.’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (quoting Russello v. United

States, 464 U.S. 16, 23 (1983) (additional internal quotation marks omitted)). See also In re

Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, ¶ 43

(F.C.C. Jul. 10, 2015) (“The TCPA requires prior express consent for robocalls to wireless

numbers without regard to the content of the call.”). When enacting the TCPA, Congress

granted discretion to the FCC to exempt certain types of prerecorded calls to residential lines

based on their content but chose not to provide the same discretion to the F.C.C. for cellular

calls. 47 U.S.C. § 227(a)(2)(B). See Throndson, 2020 WL 3448281, at *6 (citing Tele.

Consumer Prot. Act Of 1991, Pub. L. No. 102–243, § 2, 105 Stat 2394 (1991)). The FCC has

clearly stated in rulings related to debt collection that the “plain language of section

227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the

absence of an emergency or the prior express consent of the called party . . . [and] that this

prohibition applies regardless of the content of the call, and is not limited only to calls that

constitute telephone solicitations.” In the Matter of R. and Reguls. Implementing the Tel.

Consumer Protec. Act of 1991, 23 F.C.C. Rcd. 559, 565 (F.C.C. 2008) (internal quotation marks

omitted).

Defendant admits to using the prerecorded voice of Ms. Hall when it initiated telephone

calls to plaintiff’s cellular telephone line and has failed to demonstrate its assertion that a

prerecorded “greeting” is an exception under 47 U.S.C. § 227(b)(1)(A). Therefore, defendant’s

summary judgment motion on plaintiff’s TCPA claim relating to the use of a prerecorded voice

call is denied.

iii. Consent

A caller must obtain prior express consent before making a call to a cellular telephone

number using either an automatic dialing system or an artificial or prerecorded voice. 47 U.S.C.

§ 227(b)(1)(A)(iii). When the call constitutes a telemarketing call, then the caller’s signed

written consent is required. 47 C.F.R. § 64.1200(a)(2). Any consent relied upon under this

section must be sufficient to demonstrate that the call recipient received a “clear and conspicuous

disclosure” the purpose of which is to “authorize the seller to place prerecorded calls to such

person,” 16 C.F.R. § 310.4(b)(v)(A)(i), and “unambiguously” agrees to receive calls at the

designated telephone number. In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act

of 1991, 27 F.C.C. Rcd. 1830, ¶ 32 (F.C.C. Feb. 15, 2012) (citing 16 C.F.R. § 310.4(b)(v)(A)(i-

iv)).4 Further, if existence of consent is challenged at a later date, then the burden is on the caller

to prove a “clear and conspicuous disclosure” was provided and that unambiguous consent was

obtained. 16 C.F.R. § 310.4(b)(v)(A)(i).

Here, defendant bears the burden of establishing that there was prior express consent.

See Zehala, 2011 WL 4484297, at *5 (citing Pollock v. Bay Area Credit Serv., LLC, No. 08–

61101–Civ., 2009 WL 2475167, at *9–10 (S.D. Fla. Aug.13, 2009)). Defendant claims via Ms.

Hall’s affidavit that it received plaintiff’s written consent and contact information from a third-

party partner, The Leads Warehouse, who obtained the information through an individual request

for contact submitted on the partner’s website (www.securemedicareenrollment.com). (Doc. 43-

1 at PAGEID 213-14: ¶ 4). Ms. Hall avers that an individual named Michael Schwartz, a

resident of Texas with phone number 817-600-6805, consented to be called when he selected the

option to request direct contact from an agent or broker, which included the disclaimer, “By

clicking the ‘Submit’ button below you acknowledge and agree to our Privacy Policy and Terms

of Service, and are providing your express written consent by electronic signature to be

contacted by Secure Medicare Enrollment and our Marketing Partners via: automated telephone

dialing systems, artificial or prerecorded voices, by email, SMS text message or live agent to the

phone number provided, even if my telephone number is a mobile number that is currently listed

on any state, federal or corporate ‘Do Not Call’ list, regarding telemarketing promotions for

products or services. . . .” (Doc. 43-1, Melissa Hall Aff., at PAGEID 214: ¶ 5).

In contrast, plaintiff denies that he consented to defendant’s telephone sales calls to his

4 Compare 16 C.F.R. § 310.4(b)(1)(v)(A) (prohibiting telemarketers from “initiating any outbound telephone call

that delivers a prerecorded message” without obtaining consent from the recipient) and 16 C.F.R. § 310.5(a)(8)

(requiring telemarketers to keep verifiable records of consent for outbound calls as described in 16 C.F.R. §

310.4(b)(1)(v)(A)).

cell phone. He avers, “Plaintiff did not request to be contacted by entering his information into

the website nor did [p]laintiff authorize another individual or entity to enter his information. If

[p]laintiff’s information was entered into a website as a means of requesting contact about

Medicare, then [p]laintiff is the victim of identity fraud. . . .” (Doc. 43-2 at PAGEID 228, Ex. 3,

Request for Admission 2 Response).5

Viewing the evidence in the light most favorable to plaintiff, the court finds there is a

genuine factual dispute as to whether plaintiff gave his consent to be contacted by defendant.

Defendant relies on a “good faith” argument, arguing that defendant’s reliance on the

information obtained from The Leads Warehouse – that plaintiff had provided express written

consent to be contacted – was reasonable and justified. (Doc. 43 at PAGEID 207-08; Doc. 49-1

at PAGEID 345, Ex. H, Request for Admission 7 Response). However, defendant’s intent is

irrelevant because “[t]he TCPA is essentially a strict liability statute” that does not require any

intent for liability. Harris v. World Fin. Network Nat. Bank, 867 F. Supp. 2d 888, 892 (E.D.

Mich. 2012) (quoting Alea London Ltd. v. American Home Services, Inc., 638 F.3d 768, 776

(11th Cir. 2011)). See also Am. Copper & Brass, Inc. v. Lake City Indus. Products, Inc., 757

F.3d 540, 543 (6th Cir. 2014); Michel v. WM Healthcare Sols., Inc., No. 1:10-cv-638, 2014 WL

5 Plaintiff states that even assuming he had provided his consent, HIG nevertheless “did not have plaintiff’s

[consent] because [defendant was] not listed” on the partner website as a potential marketing partner.” (Doc. 49 at

PAGEID 322). Plaintiff contends the “Marketing Partners” link in the disclaimer language contains a hyperlink that

takes users of the website to the Marketing Partners’ webpage, and neither HIG nor other commercial entities

owned, operated, or controlled by Ms. Hall are listed as Marketing Partners. (Doc. 49 at PAGEID 321-22, citing

Doc. 25, Ex. E). The photocopy of the purported website cited by plaintiff has not been authenticated under Fed. R.

Evid. 901; it appears to have been taken on November 5, 2023, which is not relevant to the state of the website in

June 2022 when plaintiff states he received phone calls from HIG; and it constitutes inadmissible hearsay evidence.

Therefore, the Court cannot consider this evidence on summary judgment. See United States v. Standring, Case No.

1:04-cv-730, 2005 WL 3981672, at *4-6, (S.D. Ohio Oct. 19, 2005) (citing Perfect 10, Inc. v. Cybernet Ventures,

Inc., 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002)), adopted, 2020 WL 689116 (S.D. Ohio Mar. 15, 2006) (Dlott, J)

(finding that both “indicia of authenticity” and a valid declaration meet the authenticity requirements of Fed. R.

Evid. 901); see also ForeWord Magazine, Inc. v. OverDrive, Inc., Case No. 1:10-cv-1144, 2011 U.S. Dist. LEXIS

125373, at *9 (W.D. Mich. Oct. 31, 2011) (noting exhibits reflecting information from commercial websites must be

authenticated by one of the methods allowed by Fed. R. Evid. 901, including testimony from a witness with personal

knowledge, expert testimony, or reference to distinctive characteristics).

497031, at *9 (S.D. Ohio Feb. 7, 2014). While defendant is correct that “consent may be

obtained by and conveyed through an intermediary,” Baisden v. Credit Adjustments, Inc., 813

F.3d 338, 343 (6th Cir. 2016), the FCC has stated that “a caller remains liable for TCPA

violations when it relies upon the assertion of an intermediary that the consumer has given such

prior express consent.” Matter of Groupme, Inc./Skype Commun. S.A.R.l Pet. for Expedited

Declaratory Rul. R. and Reguls. Implementing the Tel. Consumer Protec. Act of 1991, 29 F.C.C.

Rcd. 3442, 3447 (F.C.C. 2014).

Defendant has failed to meet its burden of introducing evidence demonstrating the

absence of a genuine issue of material fact related to consent. Celotex Corp., 477 U.S. at 322.

Therefore, defendant’s summary judgment motion is denied as to the issue of whether plaintiff

gave prior express consent to be contacted.

iv. Willfully or Knowingly

Defendant also moves for summary judgment on the question of whether defendant

willfully or knowingly violated the TCPA pursuant to 47 U.S.C. § 227(b)(3)(c) and is therefore

subject to trebled damages. (Doc. 43 at PAGEID 209). A finding of willful conduct would, at

minimum, require a showing that the plaintiff did not consent to the communication and that

defendant was aware there was a lack of consent. Given the contested issue of plaintiff’s

consent, defendant is not entitled to summary judgment on whether defendant willfully or

knowingly violated the TCPA pursuant to 47 U.S.C. § 227(b)(3)(c). Therefore, summary

judgment is also denied on the issue of trebling damages.

B. State Law Claims

Plaintiff brings his state law claims under various provisions of the Ohio Consumer Sales

Practice Act (CSPA) and the Ohio Telephone Solicitation Sales Act (TSSA). To prevail on a

claim under the CSPA, a plaintiff must prove the defendant committed an “unfair or deceptive

act or practice” or “unconscionable act or practice” and that the act or practice occurred “in

connection with a consumer transaction.” Hamilton v. Spurling, No. 3:11-cv-00102, 2013 WL

1164336, at *13 (S.D. Ohio Mar. 20, 2013) (quoting Ohio Rev. Code § 1345.02(A) and Ohio

Rev. Code § 1345.03(A)). The TSSA generally outlines the state mandates for telephone

solicitors and establishes that violations of certain TSSA provisions qualify as an “unfair or

deceptive act or practice” under the CSPA, including of sections 4719.02, 4719.05, or 4719.06;

division (C), (D), or (E) of section 4719.07; section 4719.08; and division (A) of section

4719.09. Ohio Rev. Code § 4719.14.

The parties disagree on whether the calls defendant placed to plaintiff constitute a

“telephone solicitation” in accordance with the TSSA. (Doc. 43 at PAGEID 210-11, 21; Doc. 49

at PAGEID 326, 328-29, 332-33). The TSSA defines telephone solicitation as a

“communication [] initiated by or on behalf of a telephone solicitor or by a salesperson,” Ohio

Rev. Code § 4719.01(7)(a), where the “communication either represents a price or the quality or

availability of goods or services or is used to induce the person to purchase goods or services,

including, but not limited to, inducement through the offering of a gift, award, or prize.” Ohio

Rev. Code § 4719.01(7)(b). A telephone solicitor is defined as someone who “engages in

telephone solicitation directly or through one or more salespersons.” Ohio Rev. Code §

4719.01(8).

Defendant argues that because the communication did not include an “offer” or

“inducement,” and plaintiff did not ultimately “purchase any goods or services from defendant,”

the communication is not a “telephone solicitation.” (Doc. 43 at PAGEID 210). Plaintiff argues

that defendant contacted plaintiff to “advertise defendant’s services” (Doc. 49 at PAGEID 326),

and the “unsolicited communications . . . were telephone solicitations, comprised of messages

containing information about [d]efendant’s services to clients.” (Doc. 49 at PAGEID 329).

Defendant has failed to present evidence demonstrating there is no genuine issue of fact

as to whether it engaged in a “telephone solicitation” within the meaning of the TSSA. Ohio

Rev. Code § 4719.01(7)(a). Defendant’s focus on the content of the communication with

plaintiff, rather than the intent of the communication, places undue emphasis on the statute’s use

of the term “inducement” and ignores the use of the verb “to induce.” The definition of

“telephone solicitation” under the TSSA focuses on the initiation of communication aimed at

inducing a purchase, regardless of the outcome. If the communication was initiated with the

intent to induce the person to purchase goods or services, then it meets the criteria for telephone

solicitation. Further, defendant points to no case law supporting the assertion that there must be

a completed transaction for goods or services to qualify as a telephone solicitation.

Defendant admits it obtained plaintiff’s contact information from a third party who

“generated leads for insurance companies and brokers who sell Medicare insurance

supplements,” like defendant, and “provided contact information for potential customers who

expressly requested information concerning Medicare insurance supplements.” (Doc. 43 at

PAGEID 202, 207). The parties agree that the consent disclaimer on the partner website

(www.securemedicareenrollment.com), which defendant partially relies on for its consent

argument, contained the statement, “This is a solicitation for insurance.” (Doc. 43-1 at PAGEID

241). Further, while the parties agree Ms. Greene told plaintiff she was “not making a sales call”

(Doc. 43 at PAGEID 211; Doc. 49 at PAGEID 332), her inquiry as to whether “plaintiff’s

Medicare needs had been met” was presumably a precursor to a discussion about the

“availability” of Medicare insurance supplements offered for sale by the defendant. Defendant

has not offered any other purpose for initiating the telephone call to plaintiff other than to induce

him to purchase Medicare health insurance supplements.

Defendant also avers that “[w]hen one listens to the recording of the conversation

between Ms. Greene and Plaintiff, one can only conclude that Ms. Greene believed . . . Plaintiff

had expressly requested additional information concerning Medicare coverage.” (Doc. 43 at

PAGEID 210-11; 43-1 at PAGEID 216). Unfortunately, the Court does not have the benefit of

listening to the telephone calls between Ms. Greene and plaintiff. While both parties reference

“recordings” of the telephone calls between plaintiff and defendant’s agent Ms. Greene, neither

party has entered the evidence into the record. (Doc. 43 at PAGEID 204; Doc. 49-1 at PAGEID

346, Ex. 3, Request for Production 5 Answer).

Defendant has failed to demonstrate there is no genuine issue of material fact as to

whether the communications it initiated with plaintiff were not “telephone solicitations.”

Therefore, defendant’s motion for summary judgment on plaintiffs state law claims (Counts IIT

— VII) is denied.

IT IS THEREFORE ORDERED THAT:

1. Defendant’s motion for summary judgment (Doc. 43) is GRANTED as to the issue of

whether defendant used an automatic telephone dialing system to initiate communications

with plaintiff.

2. Defendant’s motion for summary judgment (Doc. 43) is DENIED as to all other issues

and claims.

Date: 9/27/2024 Heun K Kethowh-

Karen L. Litkovitz

Chief United States Magistrate Judge

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