District Court (Wash.) Follows Aderhold; Finds that Text Messages Were Not Telemarketing, and Consent Was Appropriately Obtained

In Wick v. Twilio Inc., 2016 WL 6460316, at *2–3 (W.D.Wash., 2016), Judge Lasnik dismissed a TCPA Plaintiff’s claim against Twilio on the basis that the Plaintiff consented to receive the text messages at issue.

The parties disagree as to whether the text and call at issue qualifies as telemarketing. If the text and call do qualify as telemarketing, then defendant did not meet the requisite consent standard because plaintiff did not provide express written consent. If the text and call do not qualify as telemarketing, however, then defendant did meet the consent standard because plaintiff submitted his telephone number to the Crevalor website without limiting instructions. The Court concludes that the communications alleged by plaintiff do not rise to the level of telemarketing. The Federal Communications Commission defines telemarketing 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.” 47 C.F.R. § 64.1200(f)(12) (2013). In Chesbro v. Best Buy Stores, L.P., the Ninth Circuit called for a “common sense” approach to whether a communication amounts to telemarketing. 705 F.3d 913, 918 (2012). The Ninth Circuit concluded that repeated calls reminding plaintiff to redeem Best Buy Reward Zone Points constituted telemarketing where the only use for the points was for future purchases at Best Buy. Id.   In determining whether the communications plaintiff received constitute a common sense understanding of telemarketing, the Court finds three cases persuasive. See Aderhold v. Car2go N.A., LLC, No. C13-489RAJ, 2014 WL 794802, at *3 (W.D. Wash. Feb. 27, 2014) (granting motion for judgment on the pleadings, ruling that plaintiff’s pleadings established defendant’s affirmative defense to plaintiff’s TCPA claim), aff’d, No. 2-13-cv-00489-RAJ, 2016 WL 4709873 (9th Cir. Sept. 9, 2016); Gragg v. Orange Cab Co., Inc., 145 F. Supp. 3d 1046, 1049 (Nov. 9, 2015) (holding that the text portion alerting customer of taxi’s dispatch did not violate CEMA and applying case law pertaining to the telemarketing standard under the TCPA); Daniel, 2015 WL 7454260, at *3 (granting defendant’s motion to dismiss, holding that the text defendant sent did not constitute telemarketing).  In Aderhold v. Car2go N.A., LLC, plaintiff submitted an on-line registration form for membership in car2go, at which point he then received an email and a text message about how to complete the registration process. 2014 WL 794802, at *1. The text stated: “Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.” Id. Mr. Aderhold argued that this was a telemarketing text because it directed him to place an activation code into an email that connected to the car2go website, a website that contains promotions for the car2go service. Id. at *9. The court disagreed, reasoning that there was “no indication that the text was intended for anything other than the limited purpose stated in its two sentences: to permit Mr. Aderhold to complete registration.” Id. This same analysis applies to the text and call plaintiff received. Both communications reminded plaintiff of the order process that plaintiff initiated when he submitted his information into the Crevalor website. Aderhold differs from the present case in an important respect. Mr. Aderhold submitted a registration form to apply for membership with the car2go service, id., whereas here the plaintiff did not submit a completed order form; plaintiff submitted information into the first page of the process, changed his mind, and chose not complete the order after being redirected to a second webpage. Crevalor, however, had no way of knowing that plaintiff changed his mind. Because the two communications received by plaintiff simply reminded him how to complete the order process that he had initiated, this Court is persuaded that, as in Aderhold, the purpose of these communications was customer service.  Turning next to Gragg v. Orange Cab Co., Inc., the court reaffirmed the reasoning of Aderhold. See 145 F. Supp. 3d at 1049. In Gragg, plaintiff called to order a taxi and received the following text message: “Taxi # 850 dispatched @ 05:20. Smart phone? Book our cabs with Taxi Magic—# 1 Free taxi booking app http://cabs.io/29e1b7d.” The court concluded that the first portion of the text, the dispatch notification, “was a customer service related solely to the consumer transaction he had just initiated. It did not offer or encourage the purchase of any other goods or services.” Id. Thus, the court concluded that if the first portion of the text “were unencumbered by the marketing message for Taxi Magic,” it would not have been a “commercial electronic text message” under CEMA.² Similarly, the text and call received by plaintiff were also related solely to the consumer transaction he had initiated. Plaintiff admits that he submitted his telephone number and other personal information to receive the free Crevalor product. Plaintiff does not allege that the text or call offered or encouraged the purchase of any product other than the free sample for which plaintiff submitted his information.  Finally, Daniel v. Five Stars Loyalty presents further support for the conclusion that the communications received by plaintiff do not constitute telemarketing. Plaintiff in Daniel had lunch at a Flame Broiler restaurant and asked about the Five Stars consumer rewards program. 2015 WL 7454260, at *1. The cashier informed plaintiff about the program, namely, about how customers earn points for food purchases and about how those points can be used to purchase more food. Id. Plaintiff provided his telephone number and the cashier gave him a plastic Five Stars card. Id. Only minutes later, plaintiff received a text message from Five stars stating: “Welcome to Five Stars, the rewards program of Flame Broiler. Reply with your email to finish registering and get free pts! Txt STOP to unsubscribe.” Id. Plaintiff cited Chesbro and argued that the purpose of the text was to encourage the customer to make additional purchases through the rewards program and thus constituted telemarketing. Id. at 4-5. The court disagreed because, in contrast to the plaintiff in Chesbro, the plaintiff in Daniel “received a single text message in direct and immediate response to his inquiry regarding the Five Stars program and to his provision of his telephone number.” Id. at 5. This fact pattern is analogous to plaintiff receiving a text message and call immediately upon initiating an order process. It is not telemarketing for the service or product provider to inform plaintiff how to complete that process, just as it was not telemarketing for Five Stars to inform Daniel how to finish registering.   Considering the persuasive precedent above, the text message and call received by plaintiff do not constitute telemarketing. Because plaintiff consented to the communications at issue when he submitted his telephone number during the Crevalor order process, plaintiff fails to plead a TCPA violation.