Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—N.D. Cal.: Man who received unsolicited text message advertisement advances case against mobile app developer, (Mar 12, 2015)

By Dan Selcke, J.D.

The federal district court in San Jose, California denied a motion to dismiss the case of a man who had received an unsolicited test message advertisement in purported violation of the Telephone Consumer Protection Act (TCPA), despite the defendant app developer’s argument that the man could not prove that the message was sent using an automated telephone dialing system (ATDS) (Harnish v. Frankly Co., March 11, 2015, Davila, E).

Frankly Co. operated the “Frankly App,” a mobile chat application that allowed users to send text messages to each other that would disappear after 10 seconds. Users could also send text messages to people in their mobile contact lists inviting them to download the Frankly App.

Glen Harnish, the plaintiff, received an unsolicited text message from Frankly. The message read: “I want to share disappearing photos & text with you! Get it & add me:nni66 franklychat.com/c—Alex…” Harnish did not consent to receiving this message, and brought suit against Frankly on behalf of himself and others who had received unsolicited communications. He alleged that Frankly had violated the TCPA. Frankly filed a motion to dismiss the claim or, in the alternative, to stay proceedings.

Motion to dismiss. Frankly argued that Harnish could not state a claim for a violation of the TCPA because he could not show that Frankly had contacted him using an ATDS as required by the statute. The court disagreed. Harnish alleged that, when he received the message, the “from” field was identified as short code “27367,” and that the use of a short code enabled Frankly to transmit the message en masse to a list of cellular telephone numbers. When paired with the generalized content of the message, this indicated that the message was impersonal, since there was no indication that it was specific to Harnish. This was enough to sufficiently allege the use of an ATDS at the motion to dismiss stage, especially considering that it was difficult for Harnish to truly know how Frankly transmitted its messages without performing discovery.

Motion to stay proceedings. Frankly invoked the doctrine of primary jurisdiction to argue that the court should stay proceedings because the Federal Communications Commission (FCC), the administrative body with regulatory authority to interpret and clarify the TCPA, was currently considering four declaratory rulings that may directly implicate the action. The court rejected the company’s arguments. Even if, as Frankly argued, the FCC was considering petitions regarding the definition and scope of the ATDS, other courts in this jurisdiction had already considered the definition of ATDS and allowed TCPA lawsuits to proceed.

Also, the Ninth Circuit had already stated that the statutory language defining an ATDS was clear and unambiguous, so defining it did not involve a technical or policy consideration within the FCC’s particular field of expertise. Finally, there was little danger of inconsistent rulings regarding the definition, since the courts’ interpretation of ATDS had been consistent with the FCC’s findings on the subject. Considering all this, staying the proceedings would only result in delay and prejudice toward Harnish.

The court denied Frankly’s motion to dismiss, or in the alternative, to stay proceedings.

The case number is: 5:14-CV-02321

Attorneys: Evan Matthew Meyers (McGuire Law, PC) for Glen Harnish. Tyler Griffin Newby (Fenwick & West LLP) for Frankly Co.

Companies: Frankly Co.

Cases: ConsumerProtection CaliforniaNews