Because the plaintiffs voluntarily provided their cellphone numbers to Microsoft, the company had their express consent to text them and cannot be held liable under the Telephone Consumer Protection Act for the messages, a federal court judge in California has ruled.
Edmund Pietzak filed a putative class action against Microsoft after receiving promotional text messages. He claimed the company relied upon deceptive sweepstakes and discount promotions to gather cellphone numbers and then sent text messages in violation of the TCPA and the California's Unfair Competition Law (UCL).
Microsoft countered that the plaintiffs gave their consent to receive such messages by providing their cellphone numbers and filed a motion to dismiss the suit.
Granting the motion, U.S. District Court Judge Manuel L. Real referred to the Federal Communications Commission's 1992 implementing regulations for the TCPA, which state: ". . . persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached."
Many federal district courts have relied on the 1992 FCC Order to hold that plaintiffs who provided a business with their phone numbers and then received a text message have no claim under the statute, the court said, citing decisions from across the state. "This case is no different than those before it."
"Under the FCC's definition, it is undisputed that Plaintiffs 'knowingly release[d]' their cellphone numbers to Microsoft when they participated in the promotional activities," Judge Real wrote. "Through such acts, Plaintiffs gave permission to be texted at that number by an automated dialing machine. Plaintiffs do not allege that Defendants, unprompted, began sending text messages directly to their mobile phones. Rather, the allegations are clear that it was Plaintiffs who initiated the receipt of text messages from Microsoft by voluntarily participating in Microsoft promotions. In doing so, Plaintiffs not only unequivocally expressed their interest in learning more about Microsoft's promotional offers, but they also provided their consent to receive that information through text messaging."
As the plaintiffs' UCL claim was premised entirely upon the alleged violation of the TCPA, it also failed, the court said. The plaintiffs also lacked standing for the UCL claim, Judge Real added, because they did not allege they suffered any lost money or property or suffered any economic injury. While Pietzak claimed he dealt with "repeated embarrassment, financial loss, and emotional injury," the court was not moved by the "conclusory allegations."
"Even assuming the truth of Plaintiffs' allegations, their claims fail because Microsoft's text messaging program complies with the TCPA," the court concluded. "Plaintiffs voluntarily sought specific information about Microsoft promotions, providing both their phone numbers and their express consent to receive that information by texting specific keywords from their mobile phones. There is no cognizable legal theory that could support liability against Defendants, and dismissal with prejudice is appropriate."
To read the order in Pietzak v. Microsoft Corp., click here.
Why it matters: As the complaint was dismissed with prejudice, Microsoft could not be liable under the TCPA for its text messaging program. The plaintiffs voluntarily provided their cellphone numbers, which granted permission for the company to contact them and to establish their express consent to receive text messages. Interestingly, the court's order does not discuss that prior express written consent is required for promotional or marketing messages or that certain disclosures are required for written consent.