Antitrust Law Daily Wrap Up, CONSUMER PROTECTION-W.D. Wash.: Registration confirmation text did not violate TCPA, (Feb 28, 2014)

By Jody Coultas, J.D.

Car-sharing service Car2go N.A., LLC was not liable under the Telephone Consumer Protection Act (TCPA) for sending a new service member a text message as part of the registration process, the federal district court in Seattle has held (Aderhold v. Car2go N.A., LLC, February 27, 2014, Jones, R.).

Car2go is a one-way local car-sharing service that allows member to use a car to drive to any location within preset boundaries, paying Car2go by the minute for the use of the car. Members leave the car at their destination, where another member will presumably use it to go to another destination.

After the member submitted his registration form, he received an email at the address he had provided and a text message on the cellular phone whose number he had provided. The messages directed him to enter an activation code into the emailed link. The member asserted that Car2go’s text message violated the TCPA, Washington Commercial Electronic Mail Act, and Washington Consumer Protection Act.

The TCPA makes it unlawful to make a call using an automatic telephone dialing system or an artificial or prerecorded voice to a cell phone unless made for emergency purposes or made with prior express consent. The Federal Communication Commission’s 1992 rulemaking document implementing the TCPA stated that knowingly releasing a phone number constitutes consent to be called at that number. This rule applied to text messages.

Car2go had prior express consent to send the text message at issue, according to the court. Members checked three boxes indicating assent to particular conditions, including that Car2go would validate personal information provided by the applicant and would use personal information to periodically validate membership. The text message fell squarely within the scope of these disclosures. Express consent need not be “clearly and unmistakably stated” to require any particular form of consent.

Although the member did not explicitly grant Car2go permission to contact him by text message, no reasonable person could have doubted that Car2go would contact him in some manner. When people provide their telephone numbers in commercial transactions, the court felt it would be odd to imagine that they do not consent to being contacted for purposes of completing that transaction. The court also noted that other cases addressing confirmatory text messages held that a customer who sends a text at least consents to receive a text confirming its receipt.

The text message at issue did not constitute telemarketing, according to the court. The member argued that because the text directed him to place an activation code into an email that ultimately connected to Car2go’s website, it was a telemarketing text. However, it was clear that the text was only intended to permit the member to complete registration. The fact that Car2go did not disclose the possibility that members would receive a text message that might result in charges was not relevant to whether to whether a party who provides its phone number to an entity has consented to be contacted at that phone number.

The court terminated the member’s class certification motion as it relied on the belief that he had a valid TCPA claim.

In a separate opinion issued concurrently, the court noted that Car2go’s unaccepted offer of judgment did not render the TCPA claim moot. Courts in the jurisdiction have split on this issue.

The case is No. C13-489RAJ.

Attorneys: Albert H. Kirby (Sound Justice Law Group PLLC) for Eric Aderhold. James W. Eidson (Stoel Rives) for Car2go NA LLC.

Companies: Car2go N.A., LLC

Cases: ConsumerProtection WashingtonNews