Granting summary judgment in favor of the defendant in Serban v. CarGurus, Inc., Judge Saral Ellis from the U.S. District Court, Northern District of Illinois ruled in March 2018 that a car sales website was not liable under the Telephone Consumer Protection Act (TCPA) for a text message sent to the plaintiff.

CarGurus operates a car-shopping service through its website, cargurus.com. Users can search the vehicle listings for specific parameters such as geographic location, make, model or year. When a user selects a specific car listing, the page includes an optional “Send to Phone” link. The link allows users to have information about a specific car listing sent in a text message to a phone number the user inputs.

To send a text, a user clicks the “Send to Phone” link on a specific car listing’s page. Once the dialog box is displayed, the user enters the cellphone number to which he or she wants to have the listing information sent and then clicks “Send.” The user is not required to confirm the telephone number before a message is sent.

CarGurus’ text messaging software then automatically populates a message template with information from the specific listing the user selected. Website users have no control over the content of the message aside from choosing the car about which to send information, but are capped at ten message requests in a ten-minute period.

On July 3, 2014, a cargurus.com user registered an account under the name Donnavee Ennis, listing 1-336-880-5055 as her telephone number. Over the course of the next year, Ennis’ account used the “Send to Phone” function to send 12 text messages about cars listed on the site. Eleven of the messages were sent to Ennis’ number. One of the listings was sent to 1-336-880-5505, however, transposing two of the digits.

The 5505 number belonged to Iarina Serban, who sued CarGurus after she received the text, alleging the website violated the TCPA. Although Judge Ellis denied the defendant’s motion to dismiss, she granted summary judgment in favor of CarGurus after the parties conducted discovery on the company’s text messaging functionalities.

Looking to the totality of the facts and circumstances surrounding the call to determine whether CarGurus made or initiated the text message, Judge Ellis relied on a portion of the Federal Communications Commission’s (FCC’s) 2015 Order, which was recently the subject of the pivotal ACA International v. FCC case, addressing three different cellphone apps.

In the 2015 Order, the FCC clarified in response to a petition filed by YouMail that a messaging app provider does not make or initiate a text message when it merely provides its users with the ability to set up auto replies to incoming voicemails. Similarly, in response to the TextMe petition, the agency suggested that an app did not make or initiate a call when one of its users sends an invitational message to contacts, even though the app provider may control the content. In that case, the user had to make an affirmative decision about whether, when and to whom the user sent the invitational message, the agency explained.

By contrast, the FCC denied a petition from Glide, where the company automatically sent invitation texts of its own choosing to every contact in the app user’s contact list with little or no obvious control by the user.

Applying these principles, Judge Ellis found that CarGurus did not qualify as the sender of the text message received by Serban.

“While CarGurus controls the content of the text message, this factor is not dispositive,” the court wrote. “Moreover, the user decides which listing to send, meaning that the user determines the content that populates the generated message. And the fact that the user makes this and other affirmative choices in sending the text message leads the Court to conclude that the user, and not CarGurus, initiated the text message.

“Specifically, Serban received the text message at issue because a CarGurus user went to the CarGurus website, selected a specified listing, clicked on the ‘Send to Phone’ button, entered a phone number (erroneously, it turns out), and clicked the ‘Send’ button. Serban received the text message only because the user clicked ‘Send.’”

CarGurus’ messaging functionality is similar to YouMail’s, the court said, “which the FCC noted was a ‘reactive and tailored service; in response to a call made to the app user, YouMail simply sends a message to that caller, and only to that caller.’ Like YouMail and TextMe, instead of playing an active role in choosing what content to send to which numbers, CarGurus ‘merely has some role, however minor, in the causal chain that results in the making of a telephone call.’”

The plaintiffs’ other arguments did not sway the court. The fact that CarGurus owned the shortcode through which the text message was transmitted did not render CarGurus the sender, nor did the fact that a corporate representative for the platform that bridged the website to telephone networks characterized CarGurus as the sender, as that opinion “does not carry weight under the TCPA.”

As Serban was unable to establish that CarGurus was the maker or initiator of the text message under the TCPA, Judge Ellis granted summary judgment in favor of the defendant.

To read the opinion and order in Serban v. CarGurus, Inc., click here.

Why it matters: This opinion is in line with those of a growing number of courts that have found that mere texting platforms cannot be subject to TCPA liability. When determining whether the defendant was the maker or initiator of the message at issue pursuant to the TCPA, the court said the relevant question is “who initially determines to which telephone number a text message will be sent, not the back end technological considerations of whether the message can be transmitted to that number.” Under that analysis, and relying on the FCC’s 2015 Order, the court granted summary judgment in favor of the defendant. Importantly, while certain portions of the 2015 Order were invalidated in ACA International, the portions that Judge Ellis relied upon in this case were not.