A recent TCPA decision granting defendant’s motion for summary judgment presents interesting issues regarding the definitions of “advertisement” and “telemarketing” and the scope of consent. In Payton v. Kale Realty, LLC, Case No. 13 C 8002 (N.D. Ill.), Plaintiff brought a TCPA claim against Kale Realty, LLC, a real estate brokerage firm, after Plaintiff received a text message on his cellular phone which read, “Kale Realty named 2013 Top 100 Places to Work by Tribune — We pay 100% on sales — reply or visit http://joinkale.com to learn more! Rply 69 to unsubscribe.” Plaintiff and Defendant had a pre-existing relationship. Approximately two years before the text message, Plaintiff and Defendant negotiated a potential merger of their respective businesses, which never came to fruition. The parties had exchanged many emails over the course of those negotiations, however, and at least three of those emails contained Plaintiff’s cell phone number in his email signature box.
Defendant sought summary judgment, arguing (1) the text message did not constitute an “advertisement” or “telemarketing,” as the FCC defines those terms, so only prior express consent rather than prior express written consent was required; and (2) Plaintiff’s transmission of emails with his cell phone number in the signature box constituted prior express consent to receive text messages at that number. In a February 22, 2016, opinion, U.S. District Judge Joan H. Lefkow of the Northern District of Illinois ruled in favor of Defendant on both issues.
The Text Did Not Advertise or Encourage the Sale of Goods or Services
The court first held that the text message was neither an advertisement nor telemarketing. The former focuses on the content of the message while the latter focuses on the purpose of the message. See 47 C.F.R. § 64.1200(f)(1) (defining “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services”) and § 64.1200(f)(12) (defining “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”). The court reasoned that the text message merely informed Plaintiff about an opportunity to work as an independent contractor for Defendant, and was not intended to advertise or encourage the sale of goods or services.
Plaintiff Gave Prior Express Consent
The court next held that Plaintiff gave Defendant prior express consent to send texts to his cell phone number because he voluntarily provided it to Defendant in his email signature, and he never told Defendant not to contact him at that number. Plaintiff argued that, even if that was true, Defendant’s text message exceeded the scope of that consent because he did not provide his phone number for that purpose, and it had been almost two years since the parties’ previous contact. The court rejected both arguments. The merger negotiations and text message had the sufficiently common purpose of developing a business relationship between the parties, albeit a different type of business relationship. The time between those negotiations and the text was “of no significance” because consent under the TCPA has no expiration date and “is considered effective until revoked.”