September 10, 2012
Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App -- Hickey v. Voxernet
[Post by Venkat Balasubramani]
Hickey v. Voxernet, C12-373 MJP (W.D. Wash.; Aug 13, 2012)
Voxer is an app that turns your cell phone into a walkie-talkie. Plaintiff sued on his own behalf and on behalf of a putative class, alleging that he received unsolicited text messages sent “by or on behalf of Voxer.” The precise nature of the text messages is unclear from the court’s order. While the order says that Voxer allegedly used its subscribers’ “phone contact lists,” it’s unclear as to whether users sent out “get on Voxer” texts to all of their contacts as a default, or merely sent these messages when they tried to contact specific individuals on their contacts lists. Plaintiff asserted claims under the Telephone Consumer Protection Act and Washington’s anti-spam statute.
Who is responsible for the messages?: Voxer argued that it wasn’t the one who sent the messages—i.e., the individual users were. The court says that although the relationship between Voxer and the person whose phone sent the messages is unclear, the complaint alleges sufficient facts to get past a motion to dismiss. Citing to In re Jiffy Lube, the court also says:
other courts’ willingness to expand liability under the TCPA despite the involvement of third parties in the transmission of prohibited communications indicates that potential third party involvement in sending the message . . . is not dispositive of defendant’s liability under the TCPA.
Did Voxer use an automatic telephone dialing system?: The court also says that plaintiff adequately pled the use of an ATDS by Voxer. Voxer’s app in this circumstance functions as a “predictive dialier” which according to the TCPA regs is “hardware, when paid with certain software, [which] has the capacity to store or produce numbers and dial those numbers . . . from a database of numbers.” Citing to statements in the FCC regs that automated dialing technology will continue to develop and the difficulty plaintiff faces in knowing precisely what type of dialing system a TCPA defendant uses at the early stage of the case, the court says that plaintiff’s allegations are sufficient to satisfy the requirement that defendant used an ATDS to initiate the call. (See Satterfield.)
Preemption of Washington’s email/text spam statute: Voxer argued that plaintiff’s claims under Washington’s anti-spam statute were preempted, but the court says no. There’s no difficulty in complying with both sets of rules, and no scenario where your compliance with one would put you out of compliance with the other. Voxer also argued that since the Washington statute applies to cross-border messages, it impedes the federal regulatory scheme for interstate communications. The court disagrees, and notes that Congress intended the TCPA to be a floor, to strengthen state regulations around intrusive text messages.
Having said that plaintiff’s claims are not preempted, the court finds that plaintiff does not state a claim under the Washington statute because the Washington statute only applies to texts messages that are sent to promote products or services that are for “sale or lease.” Looking to the dictionary definition of the term sale (“a price in money paid or promised”) the court says that the texts in this case don’t fit because there’s no allegation that consumers pay money for Voxer. The intangibles consumers pay to download or use Voxer are not enough to turn this into a “sale.”
Oy. In re Jiffylube strikes again. The key factual question it would have been nice to see fleshed out is whether a text was triggered by the user’s actions or by Voxer. The court says, looking to the seemingly broad notions of liability under the TCPA, that this does not matter (at least at the pleading stage). It’s interesting that there was no discussion of the terms of service and whether users were provided notice that their contacts would be sent texts. Even assuming that Voxer sends a text to every single contact, maybe Voxer could have said that it wasn’t the moving force behind the text (i.e., consumers were apprised that their contacts would be sent texts, and their act of downloading and installing the software after having been apprised of this is what caused the texts to be sent).
The preemption argument is worth noting. The two statutes are slightly different. The TCPA doesn’t speak directly to text messages but has been given this interpretation by the FCC and courts. Washington’s statute, on the other hand, doesn’t require the use of an automatic dialing system but says that you can’t send any “commercial” texts to a number assigned to a Washington resident. You could conceivably comply with the TCPA by not using an auto-dialer, but violate the Washington statute by sending a commercial text. The part of the Washington statute that’s awkward is that it only applies to numbers that are assigned to Washington residents. Are people who send out commercial texts required to consult with a directory to make sure whether the numbers on their list are assigned to Washington residents?
(The TCPA also contains a savings clause that says states are free to impose “more restrictive intrastate requirements or regulations on, or which prohibits . . . the use of . . . facsimile machines or other electronic devices to send unsolicited advertisement.” The court says that intrastate does not modify prohibitions—i.e., any prohibition is OK under the savings clause, but only intrastate regulations are saved. The drafting seems awkward to begin with, but this interpretation is clunky at best.)
As mentioned above, the big question is whether Voxer is sending texts to everyone in a user's contact list (as companies such as Reunion are alleged to have done) or whether a text is merely sent when a user tries to contact someone in his or her contact list. If it's the latter scenario, Voxer should have a viable defense under Section 230. (This brings to mind Abrams v. Facebook, a dispute from several years back, where Facebook was sued for allowing users to send SMS messages. Facebook had a Section 230 defense available, but settled and agreed to make changes around its SMS offering.) If it's the former scenario, Voxer should get out its checkbook and be prepared to write a check.
"Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell"
"Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation"
"Group Text Services Grapple with TCPA Class Actions"
"Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank"
"Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc."
"Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp."
"Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC"
"Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster"
"Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage"
Telephone Numbers as Identity Authenticators--Abrams v. Facebook