July 17, 2017

tcpa-lawOn July 12, 2017, the United States District Court for the Western District of Washington dismissed a putative class action complaint filed against Twilio, Inc. (“Twilio”), alleging that the platform had violated the Telephone Consumer Protection Act (“TCPA”).  In the underlying complaint, the named plaintiff alleged that he had received an unsolicited text message and phone call immediately after he attempted to obtain a free sample of a product from an online retailer.  According to the complaint, Twilio “has bragged that its customers have been able to spam mobile phones using its platform, and has failed to require its customers to certify that they are complying with the TCPA.”  Twilio sought dismissal of the TCPA lawsuit on numerous grounds, arguing that: (1) the named plaintiff lacks standing to bring the subject claims; (2) the allegations in the complaint regarding the use of an automatic telephone dialing system (“ATDS”) were deficient; (3) the named plaintiff failed to raise a plausible inference that Twilio initiated the text message or telephone call at issue; and (4) the named plaintiff consented to the receipt of the subject text message and call.  After considering the parties’ respective positions, the Court ultimately ruled in Twilio’s favor on the third and fourth points and, therefore, dismissed the TCPA complaint.

Why did the Court Dismiss the TCPA Claims Against Twilio?

The written decision of the Court began by rejecting Twilio’s first two arguments.  The Court found that the named plaintiff did have standing to bring his TCPA lawsuit.  The Court also rejected Twilio’s ATDS argument, finding that “the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content.  Rather, the totality of the facts and circumstances surrounding the call must be considered when determining whether the customer and/or the host initiated the call.”  The Court went on to review the facts contained in the complaint and found that Twilio’s services are not purely reactional in nature, suggesting that Twilio may be an active participant in developing the messages that recipients ultimately receive.  Nevertheless, the Court held that the facts alleged in the complaint were insufficient to raise a “plausible inference” that Twilio (rather than the underlying marketer that used the platform) initiated the subject call or sent the subject text message.  Importantly, the Court also found that the named plaintiff did, in fact, provide prior express written consent when he submitted his telephone number as part of the process to obtain a free sample from the online retailer.

Protect Yourself against a TCPA Lawsuit: Consult a TCPA Attorney Today

In a previous blog, we discussed a 2015 Federal Communications Commission (“FCC”) declaratory ruling addressing concerns involving cloud-based telecommunications service providers.  The Court in the instant Twilio matter employed the FCC ruling as a guide for determining whether and under what circumstances a cloud-based telecommunications service provider is deemed a “sender” for purposes of the TCPA.  Cloud-based providers, such as Twilio, and marketers who use such platforms must exercise caution before using these platforms for marketing campaigns.  Such businesses are advised to consult with knowledgeable counsel prior to launching any telemarketing initiatives.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website.  If you have been served with a TCPA lawsuit, 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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