Antitrust Law Daily Wrap Up, PRIVACY—N.D. Cal.: Consumers’ TCPA claims against Uber over recruiting text messages proceed, (Jul 20, 2015)

By Linda O’Brien, J.D., LL.M.

Four consumers who began but never completed an application process to become drivers for ridesharing service Uber adequately stated claims that text messages they received recruiting them as Uber drivers violated the Telephone Consumer Protection Act (TCPA), the federal district court in San Francisco has ruled. However, the court dismissed claims by a consumer who completed the driver application process because that plaintiff consented to receiving the text messages from Uber (Reardon v. Uber Technologies, Inc., July 19, 2015, Tigar, J.).

As part of the application process, the plaintiffs provided Uber with their cellular telephone numbers and received text messages from Uber recruiting them as drivers. All of the plaintiffs asserted that they received the text messages from Uber without having expressly consented to receiving them, and three of the plaintiffs allegedly continued to receive text messages after they asked Uber to stop sending them texts.

Advertisements or telemarketing. The court found that Uber’s texts did not constitute “advertising” or “telemarketing” for purposes of the TCPA. Under the TCPA, advertisements and telemarketing are defined as promoting the provision of property, goods, or services. Uber is primarily in the transportation business that provides rides services. The texts that the plaintiffs received were sent to recruit drivers and not to promote the commercial availability of Uber’s transportation services, even if Uber’s ability to successfully recruit drivers was related to its commercial interest in providing more rides to customers. Given the allegations of the complaint, the texts at issue did not contain advertisements or constitute telemarketing, the court noted.

Prior express consent. The Federal Communications Commission’s (FCC) 1992 order interpreting the TCPA provided that persons who knowingly release their phone numbers have in effect given their permission to be called at that number, absent instructions to the contrary, the court explained. In the court’s view, any plaintiff who provided his or her phone number as part of the Uber application process consented to receive Uber’s texts about becoming an Uber driver. However, for the four plaintiffs who never completed the application process, Uber did not demonstrate that they knowingly intended to release their personal information, including their phone number, to Uber. Based on the complaint’s allegations, the court declined to conclude that those four plaintiffs actually provided their phone numbers to Uber within the meaning of the FCC order and denied Uber’s motion to dismiss as to all plaintiffs other than Reardon.

Revoking consent. The court determined that consent under the TCPA could be revoked and text messages sent after consent is revoked violates the TCPA. The FCC order also clarified that consumers may revoke consent through any reasonable means, either orally or in writing. In this case, the allegations of three of the plaintiffs that they revoked their consent were sufficient to permit their claims to survive Uber’s motion to dismiss, the court concluded.

The case is No.14-cv-05678-JST.

Attorneys: Hassan Ali Zavareei (Tycko & Zavareei, LLP) for Kerry Reardon. Martin Wojslaw Jaszczuk (Locke Lord LLP) for Uber Technologies, Inc.

Companies: Uber Technologies, Inc.

Cases: Privacy CaliforniaNews