Written by Susan Nikdel
Generally, text message platform providers are not considered the “sender” or “maker” of a text message or call unless they are so involved in placing the call as to be deemed to have “made or initiated” it themselves. The Eastern District of Washington recently dismissed Springbig, Inc.—a text message platform provider—from a TCPA class action on grounds that the complaint failed to allege that Springbig “was the maker or initiator of the text message,” at issue. Frank v. Cannabis & Glass, LLC, 2019 U.S. Dist. LEXIS 17081, No. 2:19-cv-00250-SAB (E.D. Wa. Oct. 1, 2019).
According to the court’s ruling in the Frank case, Plaintiff visited a cannabis dispensary operated by Defendants Cannabis & Glass, LLC, NXNW Retail, LLC, and Tate Kapple (“Dispensary Defendants”), and provided her phone number to an employee of the dispensary during the visit. The following day, Plaintiff began to receive text messages from Dispensary Defendants which were sent using Springbig's SMS short codes. Plaintiff subsequently filed a putative class action against the Dispensary Defendants and Springbig for sending unsolicited text messages in violation of the TCPA. Springbig moved to dismiss the complaint under Rule 12(b)(6).
Under the TCPA, it is unlawful to “make any call” to a cellphone using an ATDS, and a text message is generally considered a “call” within the meaning of the TCPA. In determining whether Springbig could be deemed the “maker” of the text in question, the court started with guidance provided by the Federal Communications Commission (“FCC”) on the term “make.” In its 2015 Omnibus Ruling, the FCC clarified that "application providers that play a minimal role in sending text messages are not per se liable” for making a call. The court further recognized that the FCC explained that in determining whether an app or user is the “maker” of the call depends upon on the "totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purpose of the TCPA."
Based upon this FCC guidance, the court then articulated its own seven factor test in evaluating whether Springbig could be considered the “maker” of the text at issue:
(1) the extent to which the provider/host controls the messaging;
(2) the extent to which the provider/host controls the timing or sending of the message;
(3) the extent to which the provider/host controls the recipient list;
(4) the extent to which the provider/host "willfully enables fraudulent spoofing of telephone numbers;"
(5) the extent to which the provider/host assists customers in blocking Caller ID;
(6) whether the provider/host knowingly allows its customers to use the platform in a way that violates the TCPA;
(7) whether the service or platform is purely reactive in nature, sending messages as proscribed and arranged by the customer.
Here, the court found that Plaintiff’s complaint did not provide any allegations that Defendant Springbig “took steps physically necessary to place the call or that it was so involved in the placing of the call as to be deemed to have initiated it.” The complaint merely alleged that Defendant Springbig “made” or “initiated” the call and included several sample text messages found on Defendant’s website. The court determined that this was not sufficient to allege a TCPA claim against Defendant. There were no allegations that Defendant Springbig exercised any discernible involvement in deciding whether, when, or to whom the text message is sent, or the content of the text message. Moreover, the examples alleged by Plaintiff in her complaint could not lead to liability, given that there were no allegations stating that the Dispensary Defendants used Springbig’s suggested content. Based upon the court’s evaluation of these various factors, it concluded that Plaintiff had failed to allege sufficient facts to demonstrate that Defendant Springbig was the maker or initiator of the text messages. As such, the court granted Defendant’s motion to dismiss and held that Plaintiff failed to state a TCPA claim against Defendant Springbig.
This case provides a valuable guideline to platform providers on the what it means to be a “maker or initiator” of a call, and provides helpful parameters for providers to be cognizant of in furnishing calling or text message services to their clientele. Ultimately, the Frank case is a good reminder that the greater the involvement of the platform provider in the process of creating and sending a text message, the greater the risk it might be found to be the “maker” of that text for purposes of determining liability under the TCPA.