In Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D.Cal. 2013), Judge Wu found that the Plaintiff consented to receive confirmatory text messages from the Los Angeles Lakers by providing his cellular telephone number to the Lakers in an attempt to get his text message on the Jumbo-tron.  The facts were as follows:

The First Amended Complaint (“FAC”) alleges that Plaintiff attended a Lakers game at Staples Center on October 13, 2012, during which the Lakers displayed the following statement to fans in the arena: “TEXT your message to 525377.” FAC, Docket No. 15, ¶ 16. After viewing this statement, Plaintiff sent a text message—“I love you Facey. Happy Date Night”—to the Lakers “for the sole purpose of having Defendant put a personal message on the score-board[.]” Id. ¶ 18. Plaintiff alleges that Defendant did not inform him that by sending this text message he “would be consenting to receive future text messages” from the Lakers. Id. ¶ 17. Shortly thereafter, Plaintiff allegedly received an “unsolicited text message from the 525377 number attributed to Defendant,” which stated: “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg & Data Rates May Apply. Txt STOP to quit. Txt INFO for info” Id. ¶ 19. This is the sole message challenged by Plaintiff in this lawsuit. Plaintiff claims that the Lakers sent this text by using an automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1) “in order to attempt to solicit business from Plaintiff.” Id. ¶ 20. Plaintiff asserts that Defendant’s ATDS “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. ¶ 21. Because the Lakers allegedly did not receive Plaintiff’s consent before sending him this “unsolicited” text message, Plaintiff claims that Defendant engaged in both (1) negligent and (2) “knowing/willful” violations of the TCPA. Id. ¶¶ 40–47. Accordingly, Plaintiff seeks statutory damages and injunctive relief for himself and members of the purported class. See id. at Prayer.

The District Court rejected the claim, holding:

Recently, the Ninth Circuit emphasized that courts should look to the surrounding circumstances in determining whether particular calls “run afoul of the TCPA,” and in so doing, courts “approach the problem with a measure of common sense.” Chesbro v. Best Buy Stores, 697 F.3d 1230, 1234 (9th Cir.2012); see also Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1453 (9th Cir.1992) (“Common sense not dogma is what is needed in order to explore the actual meaning of legislative enactments.”). “[C]ontext is indisbutably relevant to determining whether a particular call is actionable under the TCPA.” Ryabyschuck, 2012 U.S. Dist. LEXIS 156176, at *8–9 (citing Chesbro, 697 F.3d at 1234–35).  ¶  Here, the Court concludes that the challenged text message is not actionable under the TCPA. Plaintiff admits that he voluntarily sent a text to the Lakers seeking to display the contents of that message on the scoreboard at Staples Center. FAC ¶¶ 15, 18. Though the Lakers allegedly failed to warn Plaintiff that he might receive a response, a “common sense” reading of the TCPA indicates that, by sending his original message, Plaintiff expressly consented to receiving a confirmatory text from the Lakers. “To hold otherwise would contradict the overwhelming weight of social practice: that is, distributing one’s telephone number is an invitation to be called[.]” Pinkard v. Wal–Mart Stores, Inc., No. CV 12–0292–CLS, 2012 U.S. Dist. LEXIS 160938, at *14 (N.D.Ala. Nov. 9, 2012); see also Ibey v. Taco Bell Corp., No. 12–CV–0583–H, 2012 U.S. Dist. LEXIS 91030, at *7 (S.D. Cal. June 18, 2012). Indeed, when Plaintiff sought to display his love for “Facey” on the Staples Center jumbotron via text, it is difficult to imagine how he could have been certain that the Lakers received his message without a confirmatory response. ¶  Furthermore, given that the Lakers’ reply notified Plaintiff that “Not all msgs go on screen,” Defendant’s message provided Plaintiff with information relevant to his request. Had Plaintiff been planning to inform his date that a special message was forthcoming, Defendant’s confirmatory response may have had the beneficial effect of tempering Plaintiff’s (or his date’s) expectations. While the specific impact of the Lakers’ message is obviously not crucial for the purposes of the TCPA analysis, the fact that the confirmatory text included information relevant to Plaintiff’s request demonstrates—in part—why the message challenged here is not the kind of “intrustive, nuisance [telemarketing] call[ ]” that Congress sought to prohibit in enacting the TCPA. Mims, ––– U.S. ––––, 132 S.Ct. at 745. For similar reasons, many federal courts have concluded that when a customer provides a company his or her phone number in connection with a trans-action, he or she consents to receiving calls about that transaction: “[T]he authorities are almost unanimous that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent.” Saunders v. NCO Fin. Sys., No. 12–CV–1750, 2012 U.S. Dist. LEXIS 181174, at *8 (E.D.N.Y. Dec. 19, 2012) (compiling cases including Meyer, 707 F.3d 1036, and Soppet v. Enhanced Recovery Co. LLC, 679 F.3d 637 (7th Cir.2012)); see also Ryabyschuck, 2012 U.S. Dist. LEXIS 156176, at *7 (where “lone text message at issue was sent to a number voluntarily provided by Plaintiff to Defendant without caveat,” such circumstances “unmistakably display some measure of prior consent” and “dispel any allusion to the proliferation of intrusive, nuisance calls”) (citations omitted); Ibey, No. 12–CV–0583–H, 2012 U.S. Dist. LEXIS 91030, at *7 (dismissing TCPA claim where “Plaintiff expressly consented to contact by Defendant when he initially texted 9138 to Defendant”); Pinkard, 2012 U.S. Dist. LEXIS 160938, at *14 (by “providing her cellular telephone number to” Wal–Mart, plaintiff evinced “ ‘clear and unmistakable’ consent to be contacted at that number”); Greene v. DirecTV, Inc., No. 10–117, 2010 U.S. Dist. LEXIS 118270, at *9–10 (N.D.Ill. Nov. 8, 2010) (by providing her cell phone number to credit reporting agency for fraud alert notifications, plaintiff expressly consented to the call at issue). ¶  Therefore, because Plaintiff voluntarily provided his number to the Lakers in requesting that his personal message appear on the Staples Center jumbotron, the Court would conclude that he consented to receiving a confirmatory text from the Lakers.

  The Lakers can still get a “W” even without Kobe. . .