Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

[Post by Venkat Balasubramani]

Kramer v. Autobytel, Inc., et al., 10-cv-02722 CW (N.D. Cal.; Dec. 29, 2010)

We’ve blogged a bunch about cases involving defendants accused of sending text messages – none of them have resolved favorably in favor of the defendants:

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

This case is no exception. Plaintiff brought a putative class action on behalf of recipients of “thousands of” unwanted text messages, some of which were allegedly received after plaintiff opted out. Plaintiff settled against the named defendant (Autobytel), and the court dismissed the individual claims against Autobytel. The putative class claims against Autobytel were dismissed without prejudice, and proceeded against the remaining defendants. Defendants advanced two arguments in their motion to dismiss: (1) the Telephone Consumer Protection Act was vague in its requirement that the messages be sent without the recipients’ “prior express consent”; and (2) the allegations in the complaint failed to state a claim.

The plaintiff’s complaint alleged the classic transmission of messages through a list procured by or on behalf of the sender (a list which was allegedly passed on multiple times down the chain). Plaintiff alleged:

an effort to promote its automotive products to consumers, Autobytel, the proprietor of one of the nation’s largest automotive referral services, through marketing partners such as LeadClick, engaged B2Mobile to conduct an especially pernicious form of marketing: the transmission of unauthorized advertisements in the form of ‘text message’ calls to the cellular phones of consumers throughout the nation. . . . In order to make their en masse transmission of text message advertisements economical, Defendants used lists of thousands of cellular telephone numbers of consumers acquired from third-parties. . . . Defendant B2Mobile contracted with third parties to acquire lists of phone numbers for the sole purpose of sending spam text messages on behalf of advertisers for its own monetary gain.Defendant Autobytel contracted with LeadClick, who there after contracted with B2Mobile, for the purpose of advertising Autobytel’s products and services through spam text messages.

As Professor Goldman mentions in his post about Satterfield, this is exactly the sort of thing that is likely to land those who transmit mass text messages in trouble (i.e., relying on consent allegedly procured by third parties).

First Amendment Challenge: Citing the standard articulated by the Ninth Circuit in Satterfield which requires a “common sense interpretation” of “express consent,” and FCC pronouncements that the TCPA applies to SMS spam, the court rejects defendants’ constitutional challenge to the statute. I’m always pretty skeptical of First Amendment challenges to statutes regulating the unsolicited transmission of one-to-one communications. It wasn’t a shocker that the court rejected defendants’ constitutional arguments in this case.

Sufficiency of the Complaint: Defendants’ challenge to the sufficiency of the complaint fared no better. Plaintiff alleged that the messages were transmitted “using equipment that . . . had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator” (this was the standard articulated by the Ninth Circuit in Satterfield). Some of the defendants also contested the sufficiency of plaintiff’s allegations regarding defendants’ role in the transmission of the messages, but the court held that plaintiff’s allegations were sufficient:

[plaintiff] stated plainly that he never consented to the receipt of such messages, and described his attempt to opt out of receiving messages from SMS code 77893, which was allegedly registered toB2Mobile. Kramer described the relationship between B2Mobile, Autobytel, and LeadClick, and the roles involved in text message advertising.

There’s not a whole lot more to say about this case. It’s a good reminder that relying on third party consent when you transmit unsolicited messages is risky behavior.