As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer.
In Wick v. Twilio Inc., No. C16-00914RSL, 2017 WL 2964855 (W.D. Wash. July 12, 2017), plaintiff alleged that he received an unsolicited text message after he attempted to obtain a free sample of a dietary supplement online. The text message stated, “Noah, Your order . . . is incomplete and about to expire. Complete your order by visiting [website].” Id. at *5. Plaintiff alleged that this message constituted telemarketing and was sent without his prior express written consent in violation of the TCPA. Defendant moved to dismiss, arguing among other things that the text message was not telemarketing and, therefore, that plaintiff’s prior provision of his mobile number was sufficient consent.
The court agreed. Relying on a “common sense” approach, the court noted that screenshots submitted by plaintiff showed that he had entered his name, address, email, and mobile number on the website and then clicked on a “Rush My Order” button before closing the webpage without completing the order. As noted above, the text message plaintiff received (1) told him that his order was “incomplete and about to expire”; and (2) directed him to “[c]omplete your order by visiting [website].” Id. The court reasoned that the text message “was aimed at completing a commercial transaction that [plaintiff] had initiated and for which he had provided his phone number.” Id. While rejecting other grounds for dismissal asserted by defendant, the court ultimately concluded that the text message was not telemarketing. Accordingly, plaintiff’s provision of his mobile number sufficed to constitute consent under the TCPA.
The Wick decision demonstrates the challenging task of distinguishing between calls and texts that are “telemarketing” and those that are not. Plaintiff had argued that the true purpose of the communication was to encourage him to visit the website and make a purchase. Defendant, in turn, argued that the text was informational in nature and merely notified plaintiff that he had not completed his order. The Wick court struck the appropriate balance by finding that plaintiff had, indeed, initiated the transaction and thus the text message he received was intended to complete it—not to sell him a new product.