Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—WDWash: Number of Text Message May Support TCPA Claim, (Apr 29, 2013)

By Jody Coultas, J.D.

A cell phone user stated a Telephone Consumer Protection Act (TCPA) claim against Orange Cab Company based on an allegedly unsolicited text message the cell phone user received from Orange Cab that was generated by an automated telephone dialing system, according to the federal district court in Seattle (Gragg v. Orange Cab Company, April 26, 2013, Lasnik, R.). The court, however, granted Orange Cab dismissal of a Washington Consumer Protection Act (WCPA) claim.

The cell phone user alleged that Orange Cab sent an unsolicited text message stating that a taxi cab was being dispatched to him and providing an advertising web link to download a smart phone application for booking Orange Cab taxis by means of an automated telephone dialing system (ATDS). An ATDS is a device that can store or call telephone numbers using an imputed list or random or sequential number generator.

A district court held that although it was reasonable to infer that the text message was generated through "human agency" and was a "customer-specific text" or a "personal and individual response to a request for a taxi," the mere existence of personalized information in a text message does not necessarily mean an ATDS was not used. The cell phone users’ claim was dismissed for failure to plead more than conclusory allegations. On appeal, the court looked at whether any indirect allegation supported a plausible inference that defendants used an ATDS.

Based on the totality of the evidence, the court declined to dismiss the TCPA claims. The cell phone user’s argument that he did not provide his telephone number to Orange Cab for marketing purposes was insufficient to show that Orange Cab used an ATDS. The existence of a business relationship and the user’s providing of his phone number when requesting services raised an inference of personal, rather than automated, interactions. The user carefully avoided stating that he did not provide his phone number to Orange Cab and the data tracking capabilities of the web link in the text message were irrelevant. However, the fact that Orange Cab sent tens thousands of similar generic messages weighed in favor of finding that the amount of messages was too substantial to have been done by an actual person. There was also no temporal connection between the user’s use of the cab services and receiving the text message. A human probably would not have made the mistake of sending a message stating that a taxi had been dispatched when it had not being dispatched. Taking the allegations as a whole, the user stated a TCPA claim.

The cell phone user failed to state a claim for relief under the WCPA against Orange Cab, according to the court. A violation of the Commercial Electronic Mail Act (CEMA) is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of the CPA. However, a well-pled CEMA claim does not automatically establish a WCPA claim. A CEMA claim establishes an unfair or deceptive act or practice that occurred in trade or commerce and impacted the public interest. However, a CEMA claim does not automatically establish causation or injury. The cell phone user could not show that he was injured by the alleged CEMA violations or causation between the alleged injury and deceptive acts. The cell phone user’s alleged injuries were paying his cell phone service provider; invasion of privacy; aggravation and annoyance; loss of use of the full capacities of his cell phone, such as storage space; and impairments and burdens on the cell phone network. None of the alleged injuries did not support the CPA claim.

The case is No. C12-0576RSL.

Attorneys: Albert H. Kirby (Kirby Law Group) for Torrey Gragg. Kenneth E Payson (Davis Wright Tremaine) for Orange Cab Co.

Companies: Orange Cab Co.

Cases: ConsumerProtection WashingtonNews