Applying a seven-factor test, a Washington federal court found that the defendant didn’t “make” or “initiate” text messages for purposes of Telephone Consumer Protection Act (TCPA) liability.
While visiting a cannabis dispensary in October 2018, Roberta Frank gave the sales associate her cellphone number at the point of sale to join a loyalty program. She was not told that by giving her number, she would start receiving text messages from the store that notified her of sales and discounts. A few days later, Frank began to receive from the store daily text messages that were sent using Springbig’s SMS short codes.
Frank sued the retail store as well as Springbig for violations of the TCPA. Springbig responded with a motion to dismiss, alleging that it did not “make” the texts pursuant to the statute.
U.S. District Judge Stanley A. Bastian looked to the Federal Communications Commission’s (FCC) 2015 Omnibus Order in which the agency clarified that “application providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls.”
The term “make” is not defined by the TCPA, the FCC noted, and courts should look to the totality of the facts and circumstances surrounding the placing of the call in order to determine who took the steps necessary to physically place the call and whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purpose of the statute.
To evaluate an entity’s involvement in placing the call, the court considered seven factors: “the extent to which the provider/host controls the messaging; the extent to which the provider/host controls the timing or sending of the message; the extent to which the provider/host controls the recipient list; the extent to which the provider/host ‘willfully enables fraudulent spoofing of telephone numbers’; the extent to which the provider/host assists customers in blocking caller identification; whether the provider/host knowingly allows its customers to use the platform in a way that violates the TCPA; and whether the service or platform is purely reactive in nature, sending messages as [prescribed] and arranged by the customer.”
Frank argued that the allegations in her complaint were sufficient to survive the motion to dismiss, but the court disagreed.
“Merely alleging that defendant Springbig ‘made’ or ‘initiated’ the call is not sufficient to allege a TCPA claim against defendant Springbig,” Judge Bastian wrote. “There are no allegations that defendant Springbig exercised any discernible involvement in deciding whether, when or to whom the text message is sent, or what the text message said.”
The inclusion of sample text messages found on Springbig’s website was not sufficient to establish liability, the court added, “given that there are no allegations stating the retail defendants used defendant Springbig’s suggested content.”
Taken as true, the complaint alleged that Springbig had some role, albeit a minor one, in the causal chain that resulted in the sending of the text messages at issue, the court said. Applying the FCC’s guidance, this was not enough to survive a motion to dismiss, and because Frank failed to allege that Springbig “controlled the recipients, timing or content,” the complaint did not allege that Springbig was the maker or initiator of the text messages.
“Consequently, plaintiff has failed to state a TCPA claim against defendant Springbig,” Judge Bastian said.
To read the order in Frank v. Cannabis & Glass, LLC, click here.
Why it matters: The allegation that a defendant had a minor role in the causal chain resulting in the text messages at issue was insufficient to state a TCPA claim, the Washington court held, relying on the FCC’s 2015 Omnibus Order for guidance.