One of the most ambitious (i.e., bad) arguments ever made by a defendant in a TCPA case was rejected by the Western District of New York in Gerrard v. Acara Sol. Inc., 1:18-cv-1041, 2019 U.S. Dist. LEXIS 108038, 2019 WL 2647758 (W.D.N.Y. June 27, 2019). Acara Solutions argued their text messages with job offers were not telemarketing in nature and therefore not subject to the TCPA.

Acara Solutions tried to argue in its motion to dismiss that they did not need consent to send text messages offering employment opportunities because the FCC has exempted non-telemarketing commercial communications from the TCPA. This argument fell apart once the Court concluded that this exemption only applied to landlines and not cell phones. Although the TCPA was passed in large measure to prevent calls to landlines, the statute ironically has been interpreted to allow non-telemarketing calls to landlines without any level of consent. As to cell phones, however, all calls require some level of consent—including non-telemarketing calls.

Whether a message constitutes an advertisement or telemarketing is relevant only to the degree of prior consent (written versus oral consent) required to avoid TCPA liability. Here, plaintiff Samantha Gerrard alleged the disputed text messages were sent by Acara Solutions without her consent and despite her requests for the communications to stop. In rendering a lengthy analysis to reject Acara Solutions’ arguments, the Court rightfully concluded the TCPA applied regardless of whether or not the text messages were non-telemarketing in nature. Like all other text messages to cell phones using an ATDS, the texts here required consent in some form, and it appears no consent was given by the consumer.

The Court also opined on ATDS usage in concluding that allegations of impersonal messaging and high text message volume is sufficient to allege ATDS usage at the pleadings stage.