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The content of a text message sent to an individual and ensuring the proper consent was obtained before sending a message helped a company secure summary judgment after it was accused of violating the Telephone Consumer Protection Act.
The plaintiff has appealed the decision to the Ninth Circuit Court of Appeals in the case of An Phan v. Agoda Company. The summary judgment ruling can be accessed by clicking here.
The plaintiff used the defendant’s service to reserve hotel rooms on four separate occasions. When making the reservation, directly above the “Book Now” button, there is a disclaimer that says, “I agree with the Privacy Policy and general terms by booking this room.” By agreeing to the terms of use, the individual consents to receiving confirmation messages via email and/or text message, which are described as transactional and not marketing.
After the plaintiff booked each room, he received a text message, saying “Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp.” He subsequently filed suit, alleging the text messages violated the TCPA because they were marketing or promotional by inviting him to download the defendant’s app.
Judge Beth Labson Freeman of the District Court for the Northern District of California, San Jose Division, ruled that because the plaintiff agreed to receive the messages and because the messages did not contain advertising or could be considered telemarketing, that the defendant should be granted summary judgment.
If a text message is to contain advertising or telemarketing, companies are required to obtain written consent from the recipient. But if the messages do not contain advertising, an individual must knowingly agree to receive the messages. If a message contains both advertising and non-advertising, then written permission is required.
The key in this case is whether the transaction was completed when the room was booked or when the plaintiff completed his stay at the hotel that he reserved. If the transaction was completed when the room was booked, then inviting the plaintiff to download an app may be considered advertising. But if the transaction was completed when the plaintiff completed his stay, the app could be used to modify the reservation.
“Both the context and the content of the messages dictate this result,” Judge Freeman wrote. “As to the context, these messages were sent as part of an ongoing business transaction between Agoda and Phan. Phan used Agoda’s services to book a travel itinerary online. Up until the time he finished his travel, he could cancel that booking or otherwise modify it through Agoda. As such, his transactional relationship with Agoda as to each booking continued through the time when he completed his travel.”
