Texting Platform Company Defeats Summary Judgment in Texas

TCPA Connect

In Franklin v. Upland Software Inc., a federal magistrate judge in Texas denied a summary judgment motion against a texting software platform, finding that the platform could not be held liable under the Telephone Consumer Protection Act (TCPA).

Plaintiff Ricky Franklin, a frequent pro se litigator, according to the decision, filed a non-class action TCPA case against defendant Upland Software, alleging that the defendant sent him a number of unsolicited text messages. The defendant asserted counterclaims against the plaintiff alleging fraud, and the plaintiff countered by immediately moving for summary judgment on his affirmative claims and filing a motion to dismiss the defendant’s counterclaims. Upland argued that it merely provides a platform for others to send texts, but did not actually initiate the texts.

Recommending the denial of both motions, Magistrate Judge Andrew W. Austin of the U.S. District Court for the Western District of Texas noted that “[s]ome courts have read the TCPA to strictly apply only to the entity making or initiating the call” while “[o]ther courts have expanded the liability to include both the entity making the calls and the company who hired and directed the entity to make or initiate the calls.” Judge Austin found that Upland was in the former category, not the latter.

Reviewing the evidence, the court found that “[t]he platform generally allows a company to capture and store consent records of individuals who have ‘opted in’ to receive text messages from that company.” However, “[t]he process ‘to make’ a call or send a text requires no involvement from Upland, but rather requires Upland’s customer to log onto its platform and set up a mobile messaging campaign from a list of individuals who have opted into a messaging campaign” and then “draft[] the content of the text message and then selects the date and time the text message is to be sent….”

Judge Austin also found that “none of the platforms that Upland uses allow for automatic or predictive dialing.” Instead, “[t]he platforms require significant human intervention and sorting on almost all aspects of the text messages and the platforms do not have the capacity to act as an auto dialer.” The judge also rejected the plaintiff’s claim on vicarious liability grounds, as there was no evidence Upland acted as an agent of the text sender.

To read the full decision in Franklin v. Upland Software Inc., click here.

Why it matters: In contrast to the Bauman v. Saxe case we also reported on in this edition, this case shows that text software platform providers are often found not liable under the TCPA, provided (no pun intended) that the company has had little involvement in the actual sending of the text messages. Further, while Judge Austin did not go into an analysis of ACA International—which is why we aren’t discussing this case as part of our continuing ACA coverage—his opinion is consistent with the growing number of courts that have found that the amount of human intervention involved matters as to whether a dialer or texting platform will be deemed an “automatic telephone dialing system” within the meaning of the TCPA.