District Court (Cal.) Says that TCPA Claim Against Insurer Not Barred by McCarran-Ferguson, that Dual-Purpose Text Requires Written Consent, and that ATDS Adequately Pleaded

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff’s claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA’s written consent requirement.

Construing the complaint in the light most favorable to plaintiff, the Court agrees with plaintiff that defendant’s communications had two purposes: (1) to alert plaintiff to the expiration of his auto insurance policy; and (2) to encourage plaintiff to renew his policy. See Compl. ¶ 10; Opp’n at 14. That is, the communications had both informational and telemarketing purposes because plaintiff was informed about the status of his policy and was encouraged to purchase services from defendant.⁴ Ordinarily, “ ‘dual purpose’ calls, those with both a customer service or informational component as well as a marketing component, are prohibited.” Chesbro v. Best Buy Stores. L.P., 705 F.3d 913, 917 (9th Cir. 2012). In some instances, a dual purpose message “would be permitted” “if the message is delivered by a company that has an established business relationship with the recipient.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014. 14099 (2003). However, the “established business relationship” exception does not apply to cellular telephones. See 47 C.F.R. § 64.1200(f)(5) (“The term established business relationship for purposes of telephone solicitations means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.” (emphasis added)): Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir. 2013) (the established business relationship and commercial purpose exemptions “do not apply to cellular phones; rather, these exemptions apply only to autodialed calls made to land-lines…. The only exemptions in the TCPA that apply to cellular phones are for emergency calls and calls made with prior express consent.”); Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1378 (S.D. Fla. 2014) (“The Court agrees with Legg that the established business relationship exemption does not apply to Legg’s claims under 47 U.S.C. § 227(b)(1)(A)(iii) for calls to his cellular telephone, and instead applies only to calls to land lines.”). Because (a) the communications to plaintiff were, in part, telemarketing, and (b) defendant is not entitled to rely on the “established business relationship” exception, the Court finds that defendant’s communications required plaintiff’s prior written consent. See 47 C.F.R. § 64.1200(a)(2). Plaintiff alleges that defendant “did not have prior written express consent to call Plaintiff and make these telephone soliciations[.]” The Court therefore concludes that plaintiff adequately pleads that defendant communicated with plaintiff absent the required consent.