In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 24-1623
JAMES C. HULCE, on behalf of himself and all others similarly
situated,
                                          Plaintiff-Appellant,

                                 v.

ZIPONGO INC.,
                                                 Defendant-Appellee.
                     ____________________

         Appeal from the United States District Court for the
                   Eastern District of Wisconsin.
              No. 23-cv-159 — Lynn Adelman, Judge.
                     ____________________

  ARGUED NOVEMBER 12, 2024 — DECIDED MARCH 17, 2025
              ____________________

    Before SYKES, Chief Judge, and BRENNAN and ST. EVE, Cir-
cuit Judges.
    ST. EVE, Circuit Judge. Zipongo Inc., which does business
as Foodsmart, called and texted James Hulce about free nutri-
tional services it offered through Hulce’s state and Medicaid
funded healthcare plan. In response, Hulce brought a puta-
tive class action suit against Foodsmart alleging that it vio-
lated the Telephone Consumer Protection Act (“TCPA”) and
2                                                  No. 24-1623

the TCPA’s implementing regulations by initiating prohibited
“telephone solicitations.”
    After finding that the calls and messages Hulce received
did not fall within the meaning of “telephone solicitation,” the
district court granted Foodsmart’s motion for summary judg-
ment. We affirm. Foodsmart did not initiate communications
with Hulce for the purpose of encouraging someone who
makes the purchasing decision to purchase its services.
                               I
    Foodsmart is a for-profit company that provides nutri-
tional consultations to individuals. These consultations can
include dietary assessments, cost-effective meal planning,
and help enrolling in government assistance programs. While
individuals can sign up for Foodsmart’s services directly,
Foodsmart focuses its efforts on contracting with healthcare
plans that offer its consultations to plan members.
    Chorus Community Healthcare Plans (“CCHP”) is one
such healthcare plan. CCHP and Foodsmart agreed that
Foodsmart would provide its services at no cost to CCHP
members. This meant that members would not pay any fee,
copay, or coinsurance for Foodsmart’s services. Instead,
Foodsmart would bill CCHP if a plan member met with a reg-
istered dietician. For members who received benefits through
Medicaid, CCHP would also pay Foodsmart a yearly fee per
Foodsmart patient or app user and performance bonuses if its
plan members met certain health metrics.
    James Hulce used CCHP as his healthcare plan during the
period relevant to this suit. He selected CCHP through his en-
rollment in BadgerCare Plus, a healthcare program funded by
the State of Wisconsin and Medicaid.
No. 24-1623                                                    3

    Hulce alleged that he received approximately twenty calls
and text messages from Foodsmart—all while his name was
on the national do-not-call registry. As one example,
Foodsmart, through a contracted call service, left Hulce the
following voicemail:
   Hi James, this is Cassandra. I’m calling on behalf of the
   Children’s Community Health Plan and [F]oodsmart
   to let you know about a giveaway [] we are currently
   running as part of your CCH[P] membership. You
   could be entered to $100 [sic] by participating in the
   zero cost Telehealth visit and completing a nutritional
   assessment. Please call us back … as soon possible so
   we can get you entered into the giveaway.
Hulce also received a text message from Foodsmart:
   October is the month of sweet treats & pumpkin spice
   everything. Make meeting with a personal dietician
   part of your Fall routine & balance your blood sugar
   Bundle Up! Get a $25 gift card when you complete a no
   cost visit in Oct., and $25 for taking the Foodsmart Nu-
   triquiz!
The text message included emojis, a link, and ended with “Re-
ply stop to unsubscribe.” Hulce unsubscribed from text mes-
sages, asked Foodsmart’s contracted call service to stop con-
tacting him, and sent two grievance letters to CCHP about the
communications.
    Aggravated by continued calls, Hulce filed a putative class
action suit in the Eastern District of Wisconsin. He alleged that
Foodsmart violated the TCPA and Federal Communications
Commission’s (FCC) implementing regulations by initiating
“telephone solicitations” while he was on the national do-not-
4                                                          No. 24-1623

call registry and despite his requests for the calls and mes-
sages to stop. See 

(c)(2); 

(d), (e). 1
    Foodsmart moved for summary judgment at the close of
an initial discovery period. The relevant issue for this appeal
is Foodsmart’s argument that the communications Hulce re-
ceived fell outside the definition of “telephone solicitation,”
which requires “the initiation of a telephone call or message
for the purpose of encouraging the purchase … [of] services.”

(a)(4); 

(f)(15). Based on its
interpretation of “encouraging” and “purchase,” the district
court agreed, and accordingly granted Foodsmart’s motion.
Hulce now appeals.
                                   II
    We review a district court’s grant of summary judgment
de novo, affirming only if there are no issues of material fact
and Foodsmart is entitled to judgment as a matter of law.
Craftwood II, Inc. v. Generac Power Sys., Inc., 

,
1125–26 (7th Cir. 2023). We also review questions of statutory
interpretation de novo. Ambassador Animal Hosp., Ltd. v. Elanco
Animal Health Inc., 

 (7th Cir. 2023).




    1 In enacting the TCPA, Congress granted the FCC statutory authority

to create rules protecting consumers from unwanted “telephone solicita-
tions.” See 

(c). The FCC promulgated the regulations at is-
sue here pursuant to its delegated authority and incorporated Congress’s
definition of “telephone solicitation” within them. 

(f)(15).
No. 24-1623                                                           5

                                  A
    The sole question we address on appeal is whether the
calls and messages Hulce received fall within the definition of
“telephone solicitation.” With limited exceptions not relevant
here, “telephone solicitation” is defined as:
   the initiation of a telephone call or message for the pur-
   pose of encouraging the purchase or rental of, or in-
   vestment in, property, goods, or services, which is
   transmitted to any person.

(a)(4); 

(f)(15).
   The parties’ dispute centers around the meaning of “en-
couraging.” 2 Whereas Foodsmart argues that the purpose of
the call must be “to persuade” or “urge” someone to make a
purchase, Hulce argues that the purpose of the call need only
be to make a purchase “more likely to happen.” To Hulce,
Foodsmart initiated its communications with him for this
very purpose—they made it more likely that he would use
Foodsmart’s services, which would result in CCHP paying
Foodsmart. “Telephone solicitations,” according to Hulce, are
essentially “commercial messages designed to increase …
Foodsmart’s profits.”
   We interpret the statutory text using various tools, starting
with the text’s “ordinary, contemporary, common meaning.”
Delaware v. Pennsylvania, 

 (2023). To


   2 Hulce also argues that “purchase” can include “obtaining something

by labor, danger, or sacrifice,” which Hulce would have done by taking
time to meet a Foodsmart dietician. We reject this definition of purchase
because the TCPA clearly contemplates payment for property, goods, or
services.
6                                                               No. 24-1623

determine this meaning, we may turn to dictionaries for guid-
ance. See 

 But “[t]hat a definition is broad enough to encom-
pass one sense of a word does not establish that the word is
ordinarily understood in that sense.” Taniguchi v. Kan Pac. Sai-
pan, Ltd., 

 (2012).
    Dictionary definitions of “encourage” include both
Foodsmart’s and Hulce’s proffered meaning: encourage can
mean “to attempt to persuade” or “urge” someone to do
something; it can also mean “to spur on” an activity or “to
make something more likely to happen.” Encourage, Merriam-
Webster Online, https://merriam-webster.com/dictionary/en-
courage (last visited Mar. 5, 2025); Encourage, Cambridge
Online,      https://dictionary.cambridge.org/dictionary/eng-
lish/encourage (last visited Mar. 5, 2025). 3
    Here, read in context, the natural reading of “encourage”
means “to persuade” or “urge” someone to pay for a service.
Indeed, courts implicitly adopt this interpretation when ana-
lyzing whether calls or messages “encourage”—underscoring
the ordinary and common meaning of the term. See e.g.,
Chesbro v. Best Buy Stores, L.P., 

 (9th Cir. 2012)
(holding that calls that “encouraged recipients to engage in fu-
ture purchasing activity” constituted “telemarketing,” which
shares the same definition as “telephone solicitation”)


    3 The parties rely on present-day dictionary definitions even though

we should consider the meaning “at the time Congress enacted the stat-
ute.” Wis. Cent. Ltd. v. United States, 

 (2018) (internal quo-
tation marks omitted). We have “not scoured dictionaries [in circulation]”
when Congress passed the TCPA in 1991 or when the FCC implemented
its regulations in 2003, see United States v. Costello, 

 (7th
Cir. 2012), but note that the 2003 edition of Merriam-Webster contains the
same definition of “encourage” and “purchase” as it does today.
No. 24-1623                                                              7

(emphasis added); Spiegel v. Reynolds, No. 15 C 8504, 

, at *4 (N.D. Ill. Oct. 11, 2017) (explaining that a call
was not a “telephone solicitation” when “it sought nothing
more than gifts from the call recipients”) (emphasis added);
Schulz v. Infogroup, Inc., No. 3:19-CV-1620-N, 

, at *3 (N.D. Tex. July 21, 2020) (“Nothing ... suggests
that the [defendant] ultimately sought to sell or rent any ser-
vice or product to [the plaintiff]”).
    We have likewise read a requirement that someone be en-
couraged into other provisions of the TCPA. The TCPA, for
example, also prohibits “unsolicited advertisements,” which
are defined as “any material advertising the commercial avail-
ability or quality of any … services.” 

(a)(5).
This definition does not specify the target of the advertise-
ment, yet we understand it to require “an objective basis for
recipients to conclude they are being encouraged to buy.”
Smith v. First Hosp. Labs., Inc., 

, 608 (7th Cir. 2023)
(emphasis added); see also Ambassador Animal Hosp., 

 (“the fax [must] promote[] something that the reader can
acquire in exchange for consideration”) (emphasis added). 4
   Consider also the alternative phrasings available to Con-
gress had it wanted to proscribe any calls and messages that
made a purchase “more likely to happen.” Congress could
have, for example, defined “telephone solicitation” as a call



    4 We use these cases to demonstrate that the ordinary understanding

of “encouraging” requires encouraging someone, rather than encouraging
something. We do not, as the dissent raises, suggest that the definitions of
“unsolicited advertisement” and “telephone solicitation” are alike in all
regards. Indeed, we point out differences between the two provisions be-
low. See infra note 5 and accompanying text.
8                                                  No. 24-1623

initiated with the purpose of “causing” or “resulting in” a
purchase. Both definitions would extend to Foodsmart’s com-
munications, as no one denies that Foodsmart would profit
from Hulce’s use of its services. “Encourage” in our com-
monsense understanding, however, connotes a targeted per-
suading or urging absent in these alternative words Congress
could have used but did not. We are “doubtful … that Con-
gress sought to accomplish” Hulce’s proffered meaning “in a
surpassingly strange manner what it could have accom-
plished in a much more straightforward way.” Azar v. Allina
Health Servs., 

 (2019) (internal quotation
marks omitted); see also Advocate Health Care Network v. Staple-
ton, 

 (2017) (“When legislators did not adopt
‘obvious alternative’ language, ‘the natural implication is that
they did not intend’ the alternative” (quoting Lozano v. Mon-
toya Alvarez, 

 (2014))).
    This commonsense understanding of “encouraging” is
fortified when we read the statute “as a whole” and presume
a change of word choice denotes a change in meaning. Nielen-
Thomas v. Concorde Inv. Servs., LLC, 

 (7th Cir.
2019); see also Ambassador Animal Hosp., 

 (ex-
plaining that Congress’s use of a term in one section of an act
but not another allows us to presume “Congress act[ed] in-
tentionally and purposefully”).
    Take the TCPA’s prohibition against “unsolicited adver-
tisement” once more: the definition includes the qualifier
“commercial,” which “tells us that the advertising must relate
to commerce or have profit as its primary aim.” Smith, 77 F.4th
at 607. Congress, however, did not define “telephone solicita-
tions” as “commercial calls,” meaning calls relating to com-
merce or with profit as their primary aim. Instead, Congress
No. 24-1623                                                               9

required the proscribed calls to have a more particular pur-
pose—“encouraging the purchase” of something. Hulce ar-
gues that Foodsmart’s communications are “telephone solici-
tations” because they are “commercial messages” and “profit-
seeking,” but we decline to conflate “commercial” with “en-
couraging the purchase” given Congress’s distinct use of
these terms in separate TCPA provisions. 5
     The FCC’s implementing regulations further reflect this
distinction between general commercial activity and “encour-
aging the purchase.” The provision concerning calls to resi-
dential lines using artificial or prerecorded voices provides
that “no consent [is needed] if the call … is made for a com-
mercial purpose but does not … constitute telemarketing.” 

(a)(3)(iii); see Golan v. Veritas Ent., LLC, 

, 820–21 (8th Cir. 2015) (applying this exception).
“Telemarketing” shares the same definition as “telephone so-
licitation,” suggesting once more that “encouraging the pur-
chase” is narrower than the general “commercial purpose”
Hulce asserts spurred Foodsmart’s calls.
   We therefore conclude that “telephone solicitation” means
the initiation of a call or message for the purpose of persuad-
ing or urging someone to pay for a service. Our conclusion
carries an important implication with it: the person or entity
the caller intends to encourage is also the party who makes
the purchasing decision. That is, we agree with the district
court that we cannot separate the encouragement element


    5 Given the different definitions of “telephone solicitation” and “un-

solicited advertisement,” Hulce’s reliance on Carlton & Harris Chiropractic,
Inc. v. PDR Network, LLC, which interprets “unsolicited advertisement” is
inapposite. 

 (4th Cir. 2023).
10                                                   No. 24-1623

from the purchasing element. See also Trujillo v. Free Energy
Sav. Co., No. 5:19-cv-02072-MCS-SP, 

, at *3
(C.D. Cal. Dec. 21, 2020) (finding no intent to encourage a pur-
chase when text messages only “invite[d] the recipient to
schedule free services”); Cacho v. McCarthy & Kelly LLP, 

, 209 (S.D.N.Y. 2024) (distinguishing its facts
from Trujillo because Trujillo involved calls that “urged plain-
tiffs to use free services without encouraging plaintiff or any
third party to purchase them”).
    A straightforward conclusion flows from this interpreta-
tion. Foodsmart’s calls and messages do not fall within the
definition of “telephone solicitation” because Foodsmart did
not initiate them with the purpose of persuading or urging
anyone to pay for its services. Indeed, while Foodsmart’s pur-
pose was to encourage Hulce to use its services, its purpose
could not have been to encourage Hulce to pay for services
that were free to him. Nor could Foodsmart’s purpose have
been to encourage CCHP to do anything. Although the com-
munications may have resulted in CCHP ultimately paying
Foodsmart, the communications and any encouragement
within them were solely directed at Hulce. Hulce’s claims,
which rely on the existence of “telephone solicitations,” there-
fore do not survive summary judgment.
                                B
    We address Hulce’s remaining arguments in brief. First,
because we base our interpretation of “telephone solicitation”
on clear statutory language, Hulce’s appeals to the remedial
nature of the TCPA or selective quoting of the legislative his-
tory do not carry the day. See U.S. E.E.O.C. v. AIC Sec. Investi-
gations, Ltd., 

, 1282 (7th Cir. 1995) (explaining that
No. 24-1623                                                  11

a broad remedial purpose “cannot trump” an interpretation
drawn from the structure and logic of a statute).
   Second, Hulce asserts that decisions such as Less v. Quest
Diagnostics Inc., 

, 717–18 (N.D. Ohio 2021),
adopt his view of telephone solicitation. To the extent these
non-precedential cases are in tension with our holding, we do
not find them persuasive given their different procedural pos-
ture at the 12(b)(6) stage.
     Lastly, Hulce insists that our conclusion ignores
Foodsmart’s purpose in initiating its communications, which
he asks us to glean from Foodsmart’s employment of market-
ing professionals and its informal use of emojis. Our dissent-
ing colleague echoes this concern too by emphasizing that
“telephone solicitation” focuses on the caller’s purpose and
perspective. We take this opportunity to reemphasize that
Foodsmart’s purpose is of primary concern, but under the
facts alleged here, Foodsmart lacked the required purpose
when contacting Hulce because it could not have intended to
encourage him to pay for anything or to encourage CCHP at
all. Job titles and informal messages do not alter the legal ef-
fect of the encouragement being separate from any purchas-
ing.
                        *      *      *
   Do not overread our decision to create a sweeping loop-
hole within the prohibition of telephone solicitations. We de-
cide only 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. Hulce
has failed to demonstrate this on a unique set of facts, involv-
ing calls and messages directed solely at him and about
12                                                No. 24-1623

entirely free services available through his state and Medicaid
funded healthcare plan. For this reason, the judgment of the
district court is
                                                    AFFIRMED.
No. 24-1623                                                   13

    BRENNAN, Circuit Judge, dissenting. The parties contest the
reading of the provision in the Telephone Consumer Protec-
tion Act of 1991 that defines “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 ser-
       vices, which is transmitted to any person.

(a)(4) (emphasis supplied).
    To Hulce, this definition does not require that the pur-
chaser be the one solicited. Foodsmart reads the statute differ-
ently—that Hulce was not encouraged to purchase anything,
so the calls and texts he received fall outside this definition.
The district court read this statute to require “the communi-
cation’s purpose to be to encourage someone to make a pur-
chase.” Dist. Ct. Op. at 7. To me, that court’s misstep was to
read “for the purpose of encouraging” from the viewpoint of
the recipient instead of the caller.
   The fundamental inquiry of the “telephone solicitation”
provision is the caller’s purpose, not what effect the call has
on the recipient. See Golan v. Veritas Ent., LLC, 

 (8th Cir. 2015) (concluding the calls’ “purpose controlled
whether they were ‘telemarketing’”). Put another way, the
question is whether the caller attempted to encourage the pur-
chase of a service, not whether the recipient of the call was the
individual encouraged to make that purchase.
   The sentence structure of § 227(a)(4) illustrates this read-
ing. The provision concerns the caller’s actions. “[F]or the
purpose of” follows the prohibition against initiating a call, a
limit on the caller’s actions. The point of view does not shift
before the “for the purpose of” clause, so the prohibition
14                                                   No. 24-1623

continues to be from the caller’s viewpoint. Section 227 refers
to the “called party” eight times and refers to the call’s “recip-
ient” eleven times. So, when Congress wanted to switch to the
recipient’s viewpoint, it knew how to. Those phrases should
not be read into this provision.
     The provision’s use of passive voice also supports this
reading. The statute does not say that the message must be
“for the purpose of encouraging the recipient to purchase” a
service. Indeed, § 227(a)(4) does not mention the recipient at
all. The statute does not speak to who makes the ultimate pur-
chase. So long as the caller intends to “encourag[e] the pur-
chase” of a service, the statutory definition is satisfied.
    Congress’s use of passive voice “focuses on an event …
without respect to a specific actor.” Dean v. United States, 

 (2009); see also Watson v. United States, 

 (2007) (same). The Supreme Court considered this point
in Bartenwerfer v. Buckley, 

 (2023). There, a bank-
ruptcy statute prevented discharge of debt “to the extent ob-
tained by … false pretenses, a false representation, or actual
fraud.” 

(a)(2)(A). The debtor in Bartenwerfer did
not commit any fraud. 598 U.S. at 72. Rather, her boyfriend,
with whom she sold a house, made material misrepresenta-
tions to the buyer, which ultimately resulted in a large dam-
ages award in state court. Id. at 72–73. But because the debtor
co-owned the house, she was jointly liable for the damages.
Id. When she filed for bankruptcy, the bankruptcy court
found the debt nondischargeable, as it was incurred by some-
body’s fraud—even if not the debtor’s. Id. at 73.
    The Supreme Court in Bartenwerfer agreed with the bank-
ruptcy court. The debtor argued that the statute’s most natu-
ral reading was to prevent discharge of debt incurred only by
No. 24-1623                                                     15

the debtor’s fraud. Id. at 75. But the Court held that the stat-
ute’s use of passive voice “pulls the actor off the stage.” Id.
Instead, the “debt must result from someone’s fraud, but Con-
gress was ‘agnosti[c]’ about who committed it.” Id. at 76 (al-
teration in original) (quoting Watson, 

). So too
here. Given how § 227(a)(4) is written, Congress was agnostic
about who the purchaser is—the call’s recipient or someone
else.
    No doubt, “context can confine a passive-voice sentence to
a likely set of actors.” Bartenwerfer, 

. But the con-
text of § 227(a)(4) is not limiting. See ANTONIN SCALIA & BRYAN
A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 167–69 (2012) (advising courts to construe a statute “as
a whole”). As described above, the rest of § 227 shows that if
Congress wanted to limit who must be encouraged to pur-
chase something—rather than encouraging a purchase gener-
ally—it “has shown that it knows how to.” Corner Post, Inc. v.
Bd. of Governors of Fed. Rsrv. Sys., 

, 814 (2024).
    Once the statute’s passive voice is put in context, diction-
ary definitions of “encourage” are not at odds with Hulce’s
reading of the statute. For instance, the district court defined
“encourage” as “to attempt to persuade: urge.” Dist. Ct. Op.
at 6 (quoting Encourage, MERRIAM-WEBSTER DICTIONARY
ONLINE, https://www.merriam-webster.com/dictionary/en-
courage (last visited Mar. 10, 2025)). To the district court, this
definition cut against finding a statutory violation, as
Foodsmart did not “urge” Hulce to purchase anything. But
this assumes the urging must be of a person, rather than of a
purchase.
    No court of appeals has addressed this precise issue, and
district courts have reached conflicting results on little
16                                                   No. 24-1623

reasoning. The cases cited in the majority opinion about the
“unsolicited advertisement” provision of the TCPA do not
mandate Foodsmart’s reading. (In fact, Foodsmart argued in
its brief that that provision and § 227(a)(4) are “apples and
oranges.”) For the “unsolicited advertisement” provision, lia-
bility can attach purely on an objective standard. Ambassador
Animal Hosp., Ltd. v. Elanco Animal Health Inc., 

(7th Cir. 2023). What matters is whether the material adver-
tises “the commercial availability or quality of any property,
goods, or services.” 

(a)(5). Because the sender’s
intent is irrelevant, courts look to the advertisement’s objec-
tive impact on the person to view the advertisement—the re-
cipient. But the “telephone solicitation” provision looks to the
caller’s subjective purpose, so the two provisions are neces-
sarily interpreted differently.
    I read the text of § 227(a)(4) and its surrounding context to
prohibit telephone solicitation of a consumer on the do-not-
call registry when that contact encourages the purchase of a
good or service—regardless of whether the call’s recipient is
the purchaser. I therefore respectfully dissent.