Southern District of Florida Finds Text Message Response to an Advertisement is Not a Violation of the TCPA

In Edelsberg v. Vroom, Inc., No. 16-cv-62734-GAYLES, 2018 WL 1509135 (S.D. Fla. Mar. 27, 2018), the Southern District of Florida held that an advertisement directing interested persons to contact a number provided in the advertisement constituted prior express consent under the Telephone Consumer Protection Act ("TCPA").

The plaintiff, Mark Edelsberg ("Plaintiff"), posted a classified advertisement for the sale of a vehicle on Craigslist. The advertisement included the price and information about the vehicle and stated "Call XXX-XXX-6445 for more info . . . do NOT contact me with unsolicited services or offers." 2018 WL 1509135, at *2. A few days after Plaintiff's advertisement was posted, the defendant, Vroom, Inc. ("Vroom"), an online car retailer, sent a single text message to the phone number identified in the advertisement. Vroom's text message stated "Hi Mark, I am Scott at Vroom. I saw you listed your Prius online & can make an offer but need you to fill out a few more details (takes 4 mins) Text STOP to Quit." Id. at *5. If he had clicked the link, Plaintiff would have been asked to complete Vroom's online appraisal form so that Vroom could appraise the vehicle and make a cash offer. The website also "contained links to other parts of Vroom's website including its own used car inventory." Id. at *2. Plaintiff, however, did not click the link or view the vehicle appraisal form. Plaintiff alleged that Vroom's text message was an automated telemarketing text message sent using an automatic telephone dialing system ("ATDS") in violation of the TCPA.

The TCPA prohibits using an ATDS to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) . . . to any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii)). The TCPA treats text messages sent to cell phones as calls. See 2018 WL 1509135, at *3 (citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016)). Additionally, the Federal Communications Commission ("FCC") "require[s] prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines." 27 FCC Rcd. 1830, 1866, ¶3.

Because the nature of the text message could affect the type of prior express consent required, the court began its analysis by determining whether Vroom's text message constituted a telemarketing message. See 2018 WL 1509135, at *4. For the purposes of the TCPA, telemarketing is defined as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person." 47 C.F.R. § 64.1200(f)(12).

The court found that a plain reading of Vroom's text message "indicate[d] that Vroom sought to purchase the advertised vehicle, but needed additional information regarding the vehicle before it made an offer." 2018 WL 1509135, at *5. Even though clicking the link in the text message and visiting Vroom's website could have increased the likelihood Plaintiff would purchase a car from Vroom, the court indicated that the connection between the text message and purchase would not be sufficient to convert the language of the text message into a telemarketing message. See id. The court, therefore, concluded that Vroom's text message did not offer to sell Plaintiff anything and did not constitute a telemarketing text message. See id.

The court also concluded that Vroom's text message was not a "dual purpose" message. Dual purpose messages are messages that contain both customer service and marketing elements. See id. (citing 18 FCC Rcd. 14014, 14097-98, ¶ 142 (2003)). Again, the court found that the plain language of Vroom's text message "d[id] not reveal any advertising purpose." The court determined that "communications that merely include collateral opportunities to purchase something from the caller do not constitute dual purpose messages where the opportunity to purchase something from the caller is too attenuated from the purpose of the initial communication." Id. at *6. In other words, the possibility that Vroom's text message could have resulted in a sale to Plaintiff did not alter the purpose of Vroom's text message, which was to express interest in purchasing Plaintiff's vehicle. See id.

Thus, the court held that Vroom's text message was neither a telemarketing nor dual purpose message. As a result, Vroom only needed to show that Plaintiff provided prior express consent to be called, not written prior express consent. See id. at *7.

The court acknowledged that, generally speaking, merely "listing a telephone number on the internet [may] not constitute express consent to receive automated calls or text messages under the TCPA." See id. Even listing a telephone number in connection with an online advertisement may not be sufficient to constitute express consent under the TCPA. See id. However, the court found that Plaintiff included his phone number in an online advertisement that Plaintiff knew could be accessed by anyone, "direct[ed] interested buyers to contact him at the provided number for 'more info,'" and did not include any restrictions on callers in the advertisement. Id. at *8. Thus, the court concluded that Plaintiff "expressly consented to being contacted by Vroom at that number to facilitate the purchase of his advertised vehicle." Id.

Because the court found that Vroom's message was not a telemarketing or dual purpose message and Plaintiff provided prior express consent in his advertisement, the court held that Vroom's text message was not a violation of the TCPA.

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