Antitrust Law Daily Wrap Up, PRIVACY—CDCal: TCPA Claims Fail Against Los Angeles Lakers for In-Game Text Message, (May 7, 2013)

By Tobias J. Gillett, J.D., LL.M.

A basketball game attendee could not assert a Telephone Consumer Protection Act claim against the Los Angeles Lakers over a text message the Lakers sent him during the game, because the attendee had voluntarily chosen to send an initiating text message to the Lakers for display on the Lakers’ scoreboard, and the Lakers’ confirmatory message in response was not the kind of "intrusive, nuisance" communications Congress intended to prohibit in passing the TCPA, the federal district court in Los Angeles has ruled (Emanuel v. The Los Angeles Lakers, Inc., April 18, 2013, Wu, G.).

According to his complaint, on October 13, 2012, David M. Emanuel was attending a Lakers game when the Lakers displayed a message stating "TEXT your message to 525377." Emanuel sent a text message in response, for the purpose of having it displayed on the scoreboard. The 525377 number then sent him an "unsolicited" text message stating "Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info." Emanuel alleged that this message was sent by an automatic telephone dialing system (ATDS) "to solicit business" from him.

Emanuel filed suit against the Lakers, asserting that they had engaged in both negligent and "knowing/willful" violations of the TCPA. The Lakers filed a motion to dismiss.

The court concluded that the Lakers’ message was not actionable under the TCPA. The court explained that the elements of a TCPA claim were "(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent." The court noted that courts should look to the context in which a communication occurred when determining whether it violated the TCPA, and to the purpose of the TCPA in halting "the proliferation of intrusive, nuisance calls."

Although the Lakers allegedly did not warn Emanuel that he would receive a response to his message, the court determined that a "common sense reading of the TCPA" indicated that he had "expressly consented to receiving a confirmatory text from the Lakers." The court observed that "[t]o hold otherwise would contradict the overwhelming weight of social practice: that is, distributing one’s telephone number is an invitation to be called."

Moreover, the Lakers’ text message conveyed relevant information. It notified Emanuel that the Lakers had received his message, and told him that "[n]ot all msgs go on screen." The fact that the message conveyed relevant information helped demonstrate that the message was not the kind of "intrusive, nuisance" communications that Congress intended to proscribe. The court noted that "the authorities are almost unanimous that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent."

The court concluded that, since Emanuel had voluntarily provided his number to the Lakers in requesting a message to appear on the scoreboard, he had consented to receiving the text message from the Lakers. Therefore, the court granted the Lakers’ motion to dismiss with prejudice.

In a footnote, the court observed that, although it was not basing its decision on the point, it would have also found that the Lakers did not employ an ATDS to call Manuel. The court noted that the complaint "suggest[ed] that [the Lakers did] not use a system that has the capacity to generate, or to sequentially or randomly dial numbers." Emanuel himself had received the Lakers’ message in direct response to his message, not "randomly."

The case is No. CV 12-9936-GW(SHx).

Attorneys: Jason Alan Ibey (Kazerouni Law Group APC) for David M. Emanuel. Joshua M. Briones (DLA Piper US) for The Los Angeles Lakers Inc.

Companies: The Los Angeles Lakers, Inc.

Cases: Privacy CaliforniaNews