9th Circuit Rules in Favor of Plaintiff Who Received Unsolicited Text Messages

Big news from the 9th Circuit today: Satterfield v. Simon & Schuster - reversed [pdf].

The 9th Circuit reversed the district court's dismissal of claims (based on transmissions of unsolicited text messages) brought by Laci Satterfield against Simon & Schuster and others alleging violations of the Telephone Consumer Protection Act.  Satterfield's daughter signed up to receive a ringtone, and then started receiving unsolicited commercial text messages.  In this case, she received a text message marketing one of Stephen King's new novels.  She sued Simon & Schuster and others, alleging violations of the Telephone Consumer Protection Act.  (Previous posts here and here (oral argument recap predicting reversal).)

In a nutshell the court held that there were factual issues across the board, as to: (1) whether the equipment at issue fell under the TCPA's definition of an "automatic telephone dialing system"; and (2) whether Satterfield consented to receive unsolicited text messages by agreeing to the terms of service.  The court also held that text messages were "calls" under the Telephone Consumer Protection Act.

A significant decision in many respects. 

First, the fact that the TCPA covers text messages is something that significantly broadens the applicability and reach of the TCPA, given the increased prevalence of marketing through text messages.  This sort of breathes new life into a statute that has otherwise been used to police unsolicited faxes, robo-calls, and annoying dinner-time telemarketing calls.  (Maybe comercial Facebook friend messages are even covered now?)  The statute was silent on the issue (having been enacted before text messages were around) and the court agreed that the FCC's interpretation of the statute as including text messages was reasonable.  One state court in Arizona previously addressed this issue and the Ninth Circuit's ruling here is in agreement with that case.  (See also Technology & Marketing Law post here (discussing Joffe v. Acacia Mortgage).)

Second, resolution of the consent issue in Satterfield's favor demonstrates that courts will not be so friendly to marketers when it comes to consent, particularly where as here, the consent is secured by terms that are displayed on a telephone.  Marketers try to get crafty in securing broad consent (e.g., allowing the marketer to market on behalf of "affiliates") but this case demonstrates that you should think twice before doing that.  Consent secured in the mobile context will always be dicey.  [Correction:  the consent appears to have been secured via a website and not a mobile device, but the court's discussion of the various transactions involved (including aggregators) influenced the outcome.  I would imagine courts will be even stricter when it comes to consent secured via a mobile device.]

Finally, the case also illustrates that brands have to keep tabs on the marketing methods used by their marketers.  Simon & Schuster didn't directly engage in the marketing at issue here, but it could well be on the hook (among other things, they argued they were an affiliate of the marketer's in order to take advantage of the consent secured by the marketer . . . . plaintiff will likely use this to argue that they should be liable for the marketer's activities).

Other reactions:

Proskauer's New Media & Technology Blog: "Ninth Circuit Executes Dictionary Attack on Telephone Consumer Protection Act" [nice title]

The Complex Litigator:  "In Satterfield v. Simon & Schuster, Inc., Ninth Circuit defers to FCC and construes text messages as "calls under TCPA"

Davis Wright's Privacy and Security Law Blog: "Has the 9th Circuit Raised the Bar for Text-Message Affiliate Marketing" (This post makes the point that much of the commentary focused on the applicability of the TCPA to text messages, (something which was a given, following the FCC pronouncement), and the important part of the decision is the consent issue, not the applicability of the TCPA.  This is a fair point, and I'm somewhat guilty of this myself.  Still, as the sole federal appeals decision on this issue, given the absence of other case law or statutory language, the decision is important in putting its stamp of approval on the FCC rule.)
 
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