October 15, 2019

TCPA Texting Class Action Dismissed

TCPA Texting Class Action

The Eastern District of Washington dismissed a Telephone Consumer Protection Act (TCPA) class action against Springbig, Inc., a text message platform provider, because the complaint failed to prove that the company “was the maker or initiator of the text message.” Text message platform providers are not generally considered the “sender” or “maker” of a text message — unless they are involved in placing the call to the degree of having “made or initiated” it themselves.

In TCPA Texting Class Action case of Frank v. Cannabis & Glass, LLC, the Plaintiff visited a dispensary operated by the defendants and gave an employee her phone number during the visit. The Plaintiff began to receive text messages the next day, which according to the court were sent using Springbig’s SMS short codes.

According to the TCPA, it is unlawful to make a call to a cellphone using an automated telephone dialing system (ATDS) – and a text message is considered a call within the meaning of the rule. To decide whether Springbig could be considered the “maker” of the text, the court looked at a 2015 ruling by the Federal Communications Commission (FCC) regarding the term “make.”

The FCC had explained that “totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purpose of the TCPA.”

TCPA Texting Class Action Dismissed

From the influence of the FCC definition, the court then determined its own seven factor test regarding the “maker” of a text:

(1)          The extent to which the provider/host controls the messaging;
(2)          The extent to which the provider/host controls the timing or sending of the                 message;
(3)          The extent to which the provider/host controls the recipient list;
(4)          The extent to which the provider/host “willfully enables fraudulent                               spoofing of telephone numbers;”
(5)          The extent to which the provider/host assists customers in blocking                             Caller ID;
(6)          Whether the provider/host knowingly allows its customers to use the                           platform in a way that violates the TCPA;
(7)          Whether the service or platform is purely reactive in nature, sending  as                       proscribed and arranged by the customer.

According to these factors, the court found that the Plaintiff’s compliant did not incriminate Springbig. The original complaint alleged that the defendant initiated the texts, including sample texts from their website as evidence, but the court determined this was not enough to allege a TCPA claim.

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