Seventh Circuit: “Telephone Solicitation” Under the TCPA Requires Purpose to Urge the Decisionmaker to Pay—Outreach About Free Plan Benefits Is Not Covered

I. Introduction

In James Hulce v. Zipongo Inc. (doing business as Foodsmart), the Seventh Circuit addressed a recurring question under the Telephone Consumer Protection Act (“TCPA”): when do calls or texts count as a prohibited “telephone solicitation” for purposes of the national do-not-call regime?

Parties. Plaintiff-Appellant James C. Hulce, a BadgerCare Plus enrollee using Chorus Community Healthcare Plans (“CCHP”), sued Defendant-Appellee Zipongo Inc./Foodsmart, a for-profit provider of nutritional consultations that contracts with health plans.

Background facts. Foodsmart contacted Hulce by calls and texts promoting “zero cost” telehealth nutrition services available through his plan, sometimes with gift-card incentives. Hulce’s number was on the national do-not-call registry, and he asked that the contacts stop. He alleged these communications violated the TCPA and FCC regulations governing “telephone solicitations.”

Key issue. Whether communications encouraging a plan member to use services that are free to the member—but reimbursed by the plan— are “telephone solicitations” under 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(15).

II. Summary of the Opinion

The Seventh Circuit affirmed summary judgment for Foodsmart, holding that the calls and texts were not “telephone solicitations.” The court construed “telephone solicitation” to require initiation of a call or message for the purpose of persuading or urging someone to pay for property, goods, or services. Because Foodsmart’s outreach encouraged Hulce to use services that were “entirely free” to him, and the messages were not aimed at persuading CCHP (the payor) to purchase anything, the statutory definition was not met.

The majority cautioned against overreading its decision as a broad “loophole,” emphasizing the “unique set of facts” involving free services to the recipient through a Medicaid-funded plan.

Dissent. Judge Brennan dissented, reasoning that § 227(a)(4)’s “for the purpose of encouraging the purchase” clause focuses on the caller’s purpose and—because it is phrased in passive voice—does not require that the call’s recipient be the purchaser.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Standards of review and interpretive baseline

  • Craftwood II, Inc. v. Generac Power Sys., Inc. — supplied the de novo summary judgment framework (no material fact dispute; entitlement as a matter of law).
  • Ambassador Animal Hosp., Ltd. v. Elanco Animal Health Inc. — cited for de novo statutory interpretation and later for a key TCPA concept: a fax must “promote[] something that the reader can acquire in exchange for consideration,” which the majority used to reinforce that TCPA “advertising/solicitation” concepts hinge on a sale-for-consideration dynamic.
  • Delaware v. Pennsylvania — anchored the “ordinary, contemporary, common meaning” approach, including dictionary consultation.
  • Taniguchi v. Kan Pac. Sai-pan, Ltd. — cautioned that a word’s broad definitional range does not establish what is “ordinary” in context.
  • Wis. Cent. Ltd. v. United States and United States v. Costello — invoked for temporal discipline in textualism (meaning at enactment), while acknowledging the parties relied on modern dictionaries and noting 2003 Merriam-Webster matched current definitions.

2. “Encouraging” and the notion of urging a purchase

  • Chesbro v. Best Buy Stores, L.P. — used as an example of courts treating “encouraged recipients to engage in future purchasing activity” as the hallmark of “telemarketing” (same definition as “telephone solicitation”), supporting the majority’s “urge/persuade” reading.
  • Spiegel v. Reynolds — referenced to illustrate that calls seeking “nothing more than gifts” are not solicitations; i.e., the aim must be a purchase.
  • Schulz v. Infogroup, Inc. — similarly underscored that the defendant must ultimately seek to “sell or rent” something to the plaintiff.

3. Reading the TCPA “as a whole” and drawing meaning from word choice

  • Smith v. First Hosp. Labs., Inc. — central to the majority’s structural argument: “unsolicited advertisement” requires an objective basis for recipients to conclude they are “being encouraged to buy.” The majority used this to show that “encouraging” ordinarily connotes urging a person to buy (not merely increasing the likelihood of a downstream transaction).
  • Nielen-Thomas v. Concorde Inv. Servs., LLC — supported the canon that statutes should be read as a whole and that changes in wording denote changes in meaning.
  • Azar v. Allina Health Servs., Advocate Health Care Network v. Staple-ton, and Lozano v. Mon-toya Alvarez — reinforced the “obvious alternative language” canon: if Congress could have plainly written “causing” or “resulting in” a purchase but chose “encouraging,” courts should not read the statute as though Congress picked the broader phrasing.

4. Distinguishing “commercial purpose” from “telemarketing/telephone solicitation”

  • Golan v. Veritas Ent., LLC — cited by the majority to show FCC rules distinguish “commercial purpose” calls from “telemarketing” (which shares the “telephone solicitation” definition), supporting the majority’s view that solicitation is narrower than profit-seeking commerce.

5. “Free services” outreach and third-party payor dynamics

  • Trujillo v. Free Energy Sav. Co. — used to support the proposition that invitations to schedule “free services” can lack the intent to encourage a purchase.
  • Cacho v. McCarthy & Kelly LLP — cited for distinguishing scenarios where messages urge use of free services without encouraging any person (including a third party) to purchase, versus cases where someone is encouraged to purchase.

6. Arguments the majority rejected as non-dispositive

  • U.S. E.E.O.C. v. AIC Sec. Investi-gations, Ltd. — used to reject reliance on a statute’s remedial purpose to override structure and text.
  • Less v. Quest Diagnostics Inc. — acknowledged as potentially aligned with Hulce’s position, but discounted as non-precedential and at the 12(b)(6) stage.
  • Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC — deemed inapposite because it interpreted “unsolicited advertisement,” not “telephone solicitation.”

7. Dissent’s passive-voice and “caller’s purpose” authorities

  • Dean v. United States and Watson v. United States — cited to explain passive voice focuses on an event without specifying the actor.
  • Bartenwerfer v. Buckley — the dissent’s anchor: passive voice can make Congress “agnostic” about who committed an act; analogized to Congress being agnostic about who purchases.
  • Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys. — used to argue that where Congress wants a recipient-focused viewpoint, it knows how to write that.
  • A NTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS — invoked for the holistic-reading principle.

B. Legal Reasoning

1. The majority’s interpretive move: “Encourage” means urge someone to pay

The statute defines “telephone solicitation” as initiating a call or message “for the purpose of encouraging the purchase … of … services.” The majority accepted that dictionaries support both (i) “urge/persuade” and (ii) “make more likely,” but held that context selects the narrower, human-directed meaning: urging someone to buy.

Two contextual constraints do the most work:

  • Textual alternatives. If Congress meant “any call that increases the likelihood of a purchase,” it could have used causal language (“causing,” “resulting in”). Choosing “encouraging” implies a targeted attempt to induce a purchase decision.
  • Whole-statute contrast. Congress used “commercial” in the “unsolicited advertisement” definition, but not in “telephone solicitation.” The majority read that contrast as intentional: profit-motive alone is not enough; the purpose must be to spur a purchase.

2. Collapsing “encouragement” and “purchase” into a single decisionmaker

The majority then drew what it called an “important implication”: the entity the caller intends to encourage must be the party who makes the purchasing decision. Put differently, the “encouraging” element cannot be separated from the “purchase” element so that a caller “encourages” one person (the recipient) to act, while a different entity (a third-party payor) makes the “purchase.”

3. Application to Foodsmart’s plan-based, no-cost services

On the record presented, Foodsmart’s messages encouraged Hulce to use services that were “free to him,” with CCHP reimbursing Foodsmart only if the member engaged. The court treated this as legally decisive:

  • Foodsmart could not have intended to urge Hulce “to pay,” because Hulce would not pay anything.
  • Foodsmart could not have intended to urge CCHP to pay, because the communications were directed solely at Hulce, not CCHP.

Marketing trappings (emojis, “marketing professionals,” gift-card incentives) did not alter the statutory mismatch: the court required a purpose to induce payment by the decisionmaker being urged.

4. The dissent’s competing grammatical/structural theory

The dissent framed the statute as caller-purpose-centric and argued that passive voice (“encouraging the purchase”) does not specify who must purchase. On that reading, it would be enough that Foodsmart called Hulce with the purpose of encouraging a “purchase” (i.e., CCHP’s payment to Foodsmart), even if Hulce was not the purchaser.

The majority’s response is effectively a purposive-target constraint: even accepting caller purpose as key, Foodsmart’s purpose was to encourage utilization, not to urge any identified purchaser to pay.

C. Impact

1. Narrowing exposure for “free-to-member” healthcare outreach (within limits)

The immediate effect is to reduce TCPA do-not-call liability risk in the Seventh Circuit for vendors and care-management companies that contact plan members about benefits that are entirely free to the member, even if the vendor profits through plan reimbursement—so long as the communications are not directed at persuading a payor to buy.

2. Litigation framing: “telephone solicitation” will turn on payment inducement, not profit motive

Plaintiffs may need to plead and prove that the message aimed to induce payment by the person being urged (or, after this decision, that the urged party is the purchaser), rather than arguing that any economically self-interested outreach is “commercial” and therefore solicitous.

3. Compliance and drafting consequences

  • Entities will likely emphasize “no cost” framing and avoid language that resembles a sales pitch for a paid upgrade, add-on, or separately billable service.
  • Plaintiffs will likely focus discovery on whether the “free” offer is truly free (fees, copays, contingencies, enrollment costs, or later billing), and on whether communications were also intended to influence the payor’s purchasing decisions (e.g., plan-level renewals, referrals, or authorizations).
  • Because the court warned against “overread[ing]” the holding, future cases may test boundaries where the recipient’s action triggers payment more directly, or where the recipient chooses among paid tiers (making the recipient a purchaser).

4. Potential for circuit divergence

The dissent’s passive-voice approach, grounded in Bartenwerfer v. Buckley, supplies a plausible alternative textual route. If other circuits adopt the dissent’s “Congress was agnostic about who the purchaser is” framing, a split could emerge over whether the TCPA’s solicitation definition requires urging the person who pays, or merely urging conduct that leads to payment by someone.

IV. Complex Concepts Simplified

  • TCPA “telephone solicitation” (do-not-call rule). Not every unwanted business contact is covered. The statute targets calls/texts made with the purpose of encouraging a purchase of goods or services.
  • “Telemarketing” vs. “commercial purpose.” Under FCC rules, some calls can be “commercial” yet not “telemarketing.” “Telemarketing” (like “telephone solicitation”) is the narrower category aimed at getting someone to buy.
  • “Unsolicited advertisement” vs. “telephone solicitation.” An “unsolicited advertisement” (often in fax cases) is assessed more objectively—what it promotes to a reasonable recipient. “Telephone solicitation,” by contrast, turns on the caller’s purpose, but this case adds that the purpose must be to urge the payer/decisionmaker to buy.
  • Summary judgment. The court did not decide whose story was more believable; it decided that even taking the facts as developed, the law did not classify these messages as solicitations.
  • Passive voice debate. The dissent argued that “encouraging the purchase” does not specify who purchases. The majority effectively held that, in context, “encouraging” implies urging a person to pay, tethering encouragement to the purchase decisionmaker.

V. Conclusion

James Hulce v. Zipongo Inc. establishes (in the Seventh Circuit) a restrictive interpretation of “telephone solicitation” under the TCPA: the challenged call or text must be initiated for the purpose of persuading or urging the purchasing decisionmaker to pay for goods or services. Communications that urge only the use of services that are free to the recipient—even if a third-party health plan reimburses the vendor—fall outside § 227(a)(4) when the encouragement is directed solely at the recipient and not at the payor.

The decision meaningfully narrows do-not-call solicitation claims in benefit-administration and healthcare contexts, while leaving open future disputes at the edges: when “free” is not truly free, when the recipient chooses among paid options, or when the messaging is designed to influence the payor’s purchase decisions.