November 5, 2015

tcpaOn October 8, 2015, the United States District Court for the Southern District of California dismissed a putative class action complaint alleging that CallFire, Inc. (“CallFire”) violated the Telephone Consumer Protection Act (“TCPA”). CallFire offers an Internet-based platform through which customers may prepare a text message and send that message to a list of mobile phone numbers provided by the customer. The complaint alleged that the plaintiff received unsolicited text messages from The Sports Network, a co-defendant that remains in the action. The plaintiff argued that CallFire was hired by The Sports Network to send the allegedly unlawful text messages. However, CallFire moved to dismiss the complaint against it, arguing that CallFire is immune from liability under the TCPA because it is a common carrier and did not initiate the text messages at issue.

Is CallFire Immune from Liability Under the TCPA?

TCPA Action Dismissed Because CallFire is a Common Carrier

The Court began its opinion by noting that “[l]iability under the TCPA for an internet-based transmitter of text messages turns on the transmitter’s degree of involvement in selecting the content, timing, and recipients of a message as well as whether the transmitter had notice of the illegal nature of the message.” The Court then examined the facts and determined that where, as here, “a text messaging service requires its customers to determine the content, timing, and recipients of a text message, then the service has not initiated the message and is merely serving as a carrier.” In reaching its decision, the Court found it critical that “CallFire played no part in drafting the content of the messages.”

Protect Yourself

We recently blogged about a similar court victory obtained by mobile app provider WhisperText. Both decisions highlight that text message providers are more likely to be found immune from TCPA liability where the customer has greater control over the content, timing and recipients of text messages.

If you are interested in learning more about this topic or if you have been served with process concerning the TCPA or your telemarketing practices, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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