When is a text message telemarketing and when is it just informational? This was the question faced by the court in Wick v. Twilio, No. C16-914RSL, 2016 U.S. Dist. Lexis 151482 (W.D. Wash. Nov. 1, 2016). In Wick, the plaintiff alleged that he visited a website and began to fill out a form to receive a product sample. After filling out his name, address, and cell phone number, the plaintiff decided that he did not want the sample, and closed the website without submitting the form. Immediately after, the plaintiff received a text message stating: “Noah, Your order at Crevalor is incomplete and about to expire. Complete your order by visiting [link].” The plaintiff also received a phone call alerting him that he needed to finish his order immediately if he wanted the sample. Plaintiff alleged that defendant violated the TCPA by robocalling and autodialing his cell phone without his express prior written consent.
Defendant filed a motion to dismiss arguing that the text message and call to plaintiff were not telemarketing and thus it was only required to obtain plaintiff’s prior express consent (not his prior express written consent), which it did when plaintiff entered his name and phone number on the online form.
In deciding that the communications were not telemarketing, the court drew analogies to two cases. First, in Aderhold v. car2go N.A., LLC, No. C13-489RAJ, 2014 U.S. Dist. Lexis 26320 (W.D. Wash. Feb. 27, 2014), a text message with an activation code to complete an online registration was found not to be telemarketing. Second, in Gragg v. Orange Cab Co., Inc., 145 F. Supp. 3d. 1046 (W.D. Wash., 2014), a text message with a link to book a cab that was sent after plaintiff called to order a cab was held not to be telemarketing.
Like in those two cases, the court in Wick noted that the “text and call received by plaintiff were also related solely to the consumer transaction he had initiated... Plaintiff does not allege that the text or call offered or encouraged the purchase of any product other than the free sample for which plaintiff submitted his information.” Although the plaintiff changed his mind and did not complete the online form, the court said that the defendant had no way to know that plaintiff had changed his mind. The court reasoned that “[t]his fact pattern is analogous to plaintiff receiving a text message and call immediately upon initiating an order process. It is not telemarketing for the service or product provider to inform plaintiff how to complete that process.”
Because plaintiff had consented to receiving non-telemarketing robocalls or autodialed calls by entering his cell phone number on the form, the court found that there could be no lability under the TCPA and dismissed his complaint.
The decision in Wick again highlights the thin line between telemarketing and non-telemarketing communications. Where calls are limited to confirming or prompting completion of a transaction initiated by the consumer, and there is no promotion of other goods or services, there is a strong argument that the calls are not telemarketing under the TCPA.