Gragg v. Orange Cab Co., No. 2:12-cv-00576-RSL (W.D. Wash. Apr. 26, 2013)

FACTS:

  • Plaintiff complained that he received an unsolicited text message from defendants offering a free smart phone application (“app”) that would enable plaintiff to book defendants’ taxi cabs.
  • It is alleged that defendants’ offer to download the free app was essentially a marketing ploy that would be of commercial benefit to defendants.
  • The complaint alleged that defendants sent the unsolicited text message by way of an automated telephone dialing system (“ATDS”).
  • Plaintiff claimed that this conduct violated the Telephone Consumer Protection Act (the “TCPA”), the Washington Commercial Electronic Mail Act (the “CEMA”), and the Washington Consumer Protection Act (the “CPA”).
  • Defendants moved to dismiss all claims.

FOR YOUR INFORMATION:

  • The TCPA prohibits the use of an automated telephone dialing system to place a call to any telephone number assigned to a cellular telephone service. This includes both voice and text messages to a wireless number.
  • Defendants argued that because the text message was customized and sent in response to a request for a taxi, there was no evidence that an ATDS was used.

EARLIER COVERAGE OF CASE:

  • In an earlier issue of our KMT Newsletter, we reported on the court’s decision to dismiss plaintiff’s claims primarily because the court found it “implausible” that an ATDS was used to send the text message at issue.
  • The court granted plaintiff leave to amend the complaint to add allegations concerning the number of text messages received, and the length of time between when the plaintiff used the taxi service and his receipt of the text message.
  • This most recent decision is the result of the court’s permission to allow plaintiff to amend the complaint.

NEW DECISION:

  • The court found that the new pleadings were sufficient to overcome the motion to dismiss.
  • Plaintiff revised the complaint and alleged that he received the text message from the company a day after booking the cab.
  • The court held that the delay between the use of the cab company’s service and the receipt of the text message at issue supports an inference that the defendants used an ATDS.
  • The court, however, dismissed the CPA claim, noting that the plaintiff failed to allege damage to a business or property, which is required under the State statute.

TAKE AWAY:

  • Courts and regulatory agencies have a heightened sensitivity to the plight of the consumer when it comes to the receipt of unwanted, unsolicited commercial text messages.
  • It is always a prudent idea to consult with an experienced mobile marketing attorney before creating and implementing any text message advertising campaign.