Ninth Circuit: Confirmation Text Message Doesn't Violate TCPA

The Ninth Circuit Court of Appeals has upheld dismissal of a class action seeking to hold a defendant liable under the Telephone Consumer Protection Act for a confirmation text message.

Eric Aderhold registered to use the car2go service and provided the company with his cell phone number. As part of the registration process, he received an automated text message to his cell phone requiring him to enter a validation code on car2go’s Web site.

Aderhold sued, alleging that the text violated the TCPA. A district court dismissed the suit and the plaintiff appealed.

The Ninth Circuit sided with the defendant for two reasons.

First, Federal Communications Commission regulations dictate such an outcome, the three-judge panel said. The agency’s 1992 rules state that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

“Aderhold therefore consented to receive text messages related to the application process from car2go simply by providing his phone number in the application for membership,” the court wrote. It found that this submission of information by the plaintiff satisfied the circuit’s standard that “prior express consent” be “[c]onsent that is clearly and unmistakably stated.”

As a secondary reason for tossing the suit, the Ninth Circuit said the text received by Aderhold was not a “telemarketing” message. “A message is characterized as ‘telemarketing’ if it is issued ‘for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,’ ” the court said, adding that it approached the question of a message’s purpose “with a measure of common sense.”

“Car2go’s message contains no content encouraging purchase of car2go services,” the panel wrote. “The message was directed instead to completing the registration process initiated by Aderhold and to validating personal information. We follow the FCC’s determination that such messages, ‘whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements.’ ”

To read the memorandum in Aderhold v. car2go, LLC, click here.

Why it matters: The Ninth Circuit affirmed the district court’s “common sense” approach to the question of consent, finding it axiomatic that if a consumer provides a cell phone number as part of the registration process, he has signaled his consent to receive text messages at that number. The panel further found no merit to the argument that every message sent from a business constitutes telemarketing, and ruled that because car2go’s message was directed to completing the registration process—initiated by the plaintiff—no liability under the TCPA attached to the text.



pursuant to New York DR 2-101(f)

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