A text message doesn’t constitute telemarketing pursuant to the Telephone Consumer Protection Act (TCPA) where it was sent to complete a transaction, according to a decision from a federal court judge in Washington.
The dispute began when Noah Wick saw an online ad for a free nutritional supplement. Clicking on the link, he entered his name, mailing address, phone number and email address; clicked “rush my order”; and was then directed to a second page with pricing information. He then abandoned the purchase. Not long after, he received a text message stating: “Noah, Your order at Crevalor is incomplete and about to expire. Complete your order by visiting [a link].”
Rather than complete his order, Wick sued Twilio, allegedly the sender of the message, for violating the TCPA by sending the text message. The company moved to dismiss the lawsuit.
While the court found Wick had standing to sue and had plausibly alleged that the defendant used an automated telephone dialing system, U.S. District Court Judge Robert S. Lasnik granted the motion to dismiss because Wick consented to receive the text.
“The [Federal Communications Commission] defines telemarketing as ‘the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, which is transmitted to any person,’” the court said.
“A review of the allegations and attached exhibits shows that plaintiff entered his identifying information (name, address, phone number and email), agreed to the offer’s terms and conditions, and clicked on the ‘Rush My Order’ button before closing the webpage,” Judge Lasnik wrote. “Whatever his subjective intent regarding making a purchase, the text message he received was aimed at completing a commercial transaction that he had initiated and for which he had provided his phone number.”
Therefore, the text message Wick received did not constitute telemarketing, the court said. “Because plaintiff consented to the communications at issue when he submitted his telephone number as part of Crevalor’s ordering process, plaintiff failed to plead a TCPA violation.”
Wick’s state law claims fell for similar reasons, the court held, granting Twilio’s motion to dismiss the lawsuit.
To read the order in Wick v. Twilio, click here. Link: I sent PDF
Why it matters: Communications about incomplete applications and orders have been a gray area for some time. Many businesses have abstained from such communications out of fear of TCPA liability. By concluding that these communications are not marketing, this decision could provide some comfort to businesses seeking to send such communications. Moreover, according to the court, where a prospective purchaser has entered his contact information in an online form and submitted it (even if the order is not completed), the individual has provided prior express consent for non-marketing communications.