Texts Not Solicitations Despite Link to Book for Sale

TCPA Connect

A Washington federal court has ruled that text messages inviting recipients to watch a livestream of a candidate’s speech and visit his website did not constitute “telephone solicitations” under the Telephone Consumer Protection Act (TCPA), even though the website offered a book for sale.

In January 2019, Howard Schultz launched a book tour to promote his book, “From the Group Up.” The tour stops were all substantially similar: Schultz discussed the book and politics with an interviewer, with the book visible to the audience from the stage and for sale at the event.

After collecting phone numbers in voter records for individuals registered as “No Party Affiliate,” Schultz sent out two text messages on March 13, 2019. The first message read: “Howard Schultz will be speaking in Miami at 12:30! Watch live [link].” The second message stated: “Howard Schultz will be speaking about his vision for America in Miami at 12:30! Watch live [link].”

If recipients clicked on the link, it took them to the homepage of Schultz’s website, which included a livestream of the Miami speech, video clips of people sharing their thoughts on political issues and a link to order Schultz’s book.

During the Miami speech, Schultz stood at a podium by himself with no interviewer. His book was not present on the stage and he did not reference the book during the speech, instead talking about his views on politics and his plans if he ran for president. At the end of his remarks, Schultz stepped down into the audience and signed copies of his book.

A trio of text message recipients sued Schultz for violating the TCPA for sending unwanted texts without their consent and despite their numbers being registered on the National Do Not Call (DNC) Registry.

Schultz moved to dismiss the DNC claim. He argued that it failed because the text messages were not “telephone solicitations” within the meaning of the TCPA.

U.S. District Judge John C. Coughenour agreed.

“With regard to the text messages themselves, they say nothing about purchasing defendant’s book,” the court said. “Instead, the text messages encourage recipients to view defendant’s speech and provide a link to do so. And … the purpose of defendant’s Miami speech was not to encourage viewers to purchase defendant’s book. Therefore, the court finds that the plain language of the text messages did not encourage recipients to purchase defendant’s book.”

“It is clear to the court that the only purpose of defendant’s Miami speech was to discuss his political views in anticipation of a potential run for president,” the court said. “Defendant’s Miami speech did not have a dual purpose of promoting his book. Therefore, the court finds that defendant’s Miami speech did not encourage text message recipients to purchase defendant’s book.”

The court then analyzed Schultz’s homepage and held that “the mere inclusion of a link to a website on which a consumer can purchase a product does not transform the whole communication into a solicitation.” The option to purchase the book was not at the top of the homepage and was not the part of the homepage that the defendant’s text messages directed recipients to view.

“[M]ost importantly, defendant’s homepage was not the focus of the text messages,” Judge Coughenour wrote. “Defendant’s homepage was just a way to facilitate what defendant’s text messages actually encouraged—viewing defendant’s Miami speech (which … was not made for the purpose of selling defendant’s book). Therefore, the Court finds that defendant’s homepage, in this context, did not have the purpose of selling defendant’s book.”

Determining that the text messages did not constitute telephone solicitations within the meaning of the TCPA, the court dismissed the plaintiffs’ DNC claim with prejudice.

To read the order in Vallianos v. Schultz, click here.

Why it matters: Considering the text messages, the webpage the text linked to and the speech referenced in the message, the court held that the text messages at issue were not solicitations under the TCPA. Even the presence of a book for sale—and the close timing between the book tour and the Miami speech—did not persuade the court that the text messages were solicitations.

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