Main bone of contention: What constitutes a business relationship?
Back in June 2017, Jonathan Sapan filed a Telephone Consumer Protection Act (TCPA) class action against Yelp, the online review giant, in the Northern District of California. He claimed that the company made six calls to his residential number between January and March of that year without checking the National Do Not Call Registry, to which he had been subscribed since 2013.
He claims the calls were business pitches and were used to push Yelp’s business consultant services. He sued for TCPA violations, seeking the standard fines from his adversary to compensate for his wasted time and telephone service fees.
Yelp struck back with a motion for summary judgment in February 2018. The company claimed that because Sapan was an active Yelp user (with an account allegedly opened in 2013), he had created an established business relationship with Yelp and Yelp therefore did not violate the TCPA with calls to his number. Even though Sapan’s account was free and he did not list his own business, Yelp contended that the relationship still met the legal definition of established business relationship.
The TCPA defines the established business relationship as “a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call.” Yelp took pains to note that the Federal Communications Commission maintains that the relationship does not have to be financial in nature and that Sapan’s Yelp membership met the other criteria.
Yelp also noted the existence of Tierrasanta Pro Roofing (Tierrasanta). Tierrasanta is a company with an inactive listing on Yelp. However, the bearing on Sapan’s case is attenuated. Yelp claimed that Tierrasanta listed a phone number that was identical to Sapan’s residential line, which explained why Yelp representatives reached out to this number. Further, Yelp claimed that Sapan visited the Tierrasanta Yelp listing several times, presumably seeing that the number was the same as his own but doing nothing to correct the mistake.
Sapan opposed Yelp’s motion and attacked the idea that his relationship with Yelp let the company off the hook.
Sapan notes in his opposition that although he had a free account with Yelp, he did not engage in two-way communication with the company, because he used the account to communicate with other Yelp users but not with the company itself. “Mr. Sapan never engaged in any back-and-forth communications with Yelp regarding any goods or services in any medium whatsoever, and most certainly never purchased anything nor transacted any business,” the opposition maintained. Additionally, his activity in establishing the account itself was not two-way communication, because interactions with the website are automated in nature.
In addition, Sapan argued that since he never gave his number to the company, he never consented to the calls. He also dismissed the idea that agreeing to terms of service was transactional in nature, noting ironically that “While Yelp claims its Terms of Service are a ‘business’ transaction, Yelp’s 2012 terms of service flatly states that mere Yelp user’s accounts are ‘for your personal, non-commercial use only,’ showing that any business relationship would run afoul of Yelp’s own purported rules.”
Finally, Sapan objected to the mention of his visit to the Tierrasanta page, claiming that the information was irrelevant and that Yelp was mentioning it to erode his credibility. Sapan claimed he did not attempt to change the number on Tierrasanta’s page because he wanted to be a “prudent and reasonable litigant” and avoid any suggestion that he had something to do with the listing. “This should not make any difference anyway,” he argued, “since legal telemarketers would check the official Do Not Call Registry [and] not some random listing on the internet.”
It will be interesting to see how the court reacts to these two different visions of an “established business relationship” and an important decision for companies and consumers who use services such as Yelp on a recurring basis.