In An Phan v. Agoda Company Pte. Ltd., No. 16-CV-07243-BLF, — F. Supp. 3d —-, 2018 WL 6591800 (N.D. Cal., Dec. 13, 2018),[1] the district court granted summary judgment for the defendant upon holding that text messages sent from the defendant to the plaintiff were merely transactional—i.e., did not contain advertising or telemarketing—and thus were not subject to the heighted standard requiring prior express written consent.

After booking travel on the defendant’s website, the plaintiff received several text messages from the defendant stating “Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp.”  Based on receipt of these texts, the plaintiff filed a putative class action asserting a single claim for violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227.

The defendant moved for pre-certification summary judgment on the plaintiff’s claim.  The issue before the district court was whether the text messages qualified as advertising or telemarketing under the TCPA, which would require the defendant to have obtained prior express written consent to establish the affirmative defense of consent.  On the other hand, if the text messages did not contain advertising or telemarketing but were merely transactional in nature, the defendant needed only show the less stringent requirement that the consumer “knowingly” agreed to receive messages by providing his phone number for the reasons served by the message.

The district court concluded that “the context and the content of the messages demonstrate that the purpose of the messages was not to advertise or telemarket, but instead was directly cabined to facilitating and completing an existing transaction.”  With respect to the context, the district court found the messages were part of an ongoing business transaction—a transaction initiated when the plaintiff used the defendant’s services to book a travel itinerary online and, because the plaintiff could cancel or modify his travel itinerary through the defendant up and until he completed his travel, his transactional relationship with the defendant continued until the plaintiff completed his travel.  With respect to the content of the messages, the court reasoned that the plain language of the text message was limited to confirming the booking and encouraging the plaintiff to manage his booking—both of which related directly to the plaintiff’s transaction with the defendant.

In light of the district court’s conclusion that the text messages were neither advertising nor telemarketing as defined by the TCPA—but instead were part of an ongoing business transaction—the defendant was only required to obtain the plaintiff’s express consent prior to send the messages to satisfy the affirmative defense of consent.  The district court found there was no dispute that the defendant satisfied this less stringent requirement, as the plaintiff provided his phone number and agreed to the defendant’s Terms of Use and Privacy Policy that made clear that such messages would be sent.