Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—WDWash: Taxi Companies May Be Liable For Unsolicited Text Messages , (Jan 21, 2013)
Law Firms Mentioned:Davis Wright Tremaine | Kirby Law Group
Organizations Mentioned:Davis Wright Tremaine, LLP | Orange Cab Company, Inc. | Ridecharge Inc.
By Jody Coultas, J.D.
A consumer stated a Washington Commercial Electronic Mail Act (CEMA) claim against taxi companies that sent text messages to Washington cell phone users, according to the federal district court in Seattle (Gragg v. Orange Cab Co., Inc., January 17, 2013, Lasnik, R.).
The taxi companies allegedly sent unsolicited text messages offering a free smart phone application that would allow consumers to book taxi cabs. The messages were allegedly sent by means of an automated telephone dialing system (ATDS) in violation of the Telephone Consumer Protection Act (TCPA).
The consumer failed to sufficiently show that the companies used an ATDS to send the messages, according to the court. In order to state a TCPA claim, the consumers needed show that the companies sent the text messages using an ADTS. However, there was no evidence that the text messages were created by a machine. The consumer was allowed leave to amend the claims in order to provide additional allegations regarding the number of text messages sent and the amount of time between when the consumer utilized the cab services and the time he received the text.
The consumer stated a CEMA claim against the companies, according to the court. The CEMA prohibits the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service. The companies argued that offering a free download through a text message was not “commercial” as defined by the CEMA because the texts did not offer anything for sale or lease. Although there was case law to support the companies’ argument, the court concluded that a direct and immediate sale was not necessary. The issue was whether a reasonable consumer would understand the text message to be an offer of property, goods, or services for sale. Here, the purpose of the offer in the text message was to promote or encourage the use of the taxi services.
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 Company, Inc.; Ridecharge Inc.
Cases: Advertising ConsumerProtection WashingtonNews