In Reardon v. Uber Technologies, Inc., 2015 WL 4451209 (N.D.Cal., 2015), Judge Tigar dismissed part of a TCPA class action filed against Uber for recruitment texts to potential drivers.

Here, Uber argues that the text messages it allegedly sent cannot be said to “constitute telemarketing” or to “include or introduce an advertisement” because the texts do not promote its provision of property, goods, or services. Uber contends that its text messages were directed toward job recruitment, a category of text other courts have deemed not to fall into either the “telemarketing” or “advertisement” categories. Several prior cases have held that recruiting calls are not advertising or telemarketing texts for the purposes of the TCPA. See Lutz Appellate Servs., Inc. v. Curry, 859 F.Supp. 180, 181–82 (E.D.Pa.1994); Friedman v. Torchmark Corp., No. 12–CV02837–IEG (BGS), 2013 WL 1629084, at *4 (S.D.Cal. Apr. 16, 2013); Murphy v. DCI Biologicals Orlando, LLC, No. 6:12–cv–1459–Orl–36KRS, 2013 WL 6865772, at *10 (M.D.Fla. Dec. 31, 2013). In Curry, the court concluded that faxes that a former employee and his business partner sent to a former employer seeking to hire the former employer’s current employees were not “advertisements”2 under the TCPA. Id. at 181–82. In particular, the Court rejected the notion that the employment opportunities in the faxes were advertisements of goods, services, or property, as is required by the TCPA definition. Id. (“A company’s advertisement of available job opportunities within its rank is not the advertisement of the commercial availability of property.”). On that basis, the court granted the defendants’ motion to dismiss the complaint. Id. at 182. . . .Plaintiffs respond to this authority in two ways. First, they argue that Uber’s position that its texts are “employment related” is inconsistent with its position in another case in this district, O’Connor et al. v. Uber Technologies, Inc. et al., Case No. 3:13–cv–03826–EMC. ECF No. 28 at 3–5, 6–11. Plaintiffs argue that Uber asserted in O’Connor that it was a technology company in the business of providing software goods and/or services to drivers, and not an employer of drivers. Id. Plaintiffs argue that Uber may not now shift positions to argue that its messages were really solicitations of employment (or an independent contractor relationship), unrelated to the provision of goods and services and therefore not advertisements or telemarketing campaigns for the purposes of the TCPA. Id.  The Court need not address Uber’s arguments to the O’Connor court, however, because Judge Chen issued an order on the motion for summary judgment that supports Uber’s position here. See Case No. 3:13–cv–03826–EMC, ECF No. 251.3 One of the issues litigated in O’Connor was whether Uber was its drivers’ “presumptive employer.” See id. at 9–15. This issue partly hinged on the character of Uber’s business–that is, whether it is a technology company in the business of providing software or a transportation company in the business of providing rides. Id. at 9–11. Judge Chen concluded that Uber is not a technology company that primarily sells software; rather, Uber sells transportation services. Id. (“Uber does not simply sell software; it sells rides”; “Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs”; “Uber’s revenues do not depend on the distribution of its software, but on the generation of rides by its drivers”). The Court agrees with Judge Chen’s reasoning, which reinforces the Court’s finding that the texts sent to prospective drivers in this case do not promote goods or services and are not advertisements or telemarketing efforts.  Each of the messages at issue in the aforementioned cases were “advertising” because they were sent to an intermediary for the purpose of promoting a product, good, or service through that intermediary. For that reason, each of those cases is distinguishable from the present case. The texts that the Class B Plaintiffs received were sent to recruit drivers, not to promote the commercial availability of Uber’s transportation services, even if Uber’s ability to successfully recruit drivers is related to its commercial interest in providing more rides to its customers.  The Court finds that the texts at issue here were more akin to recruiting texts than advertising or telemarketing texts. The latter require the promotion of goods or services, but Uber is primarily a transportation business that provides ride services, not a technology business. Uber receives income in direct correlation to the number of rides its drivers provide, not as a proximate result of the number of drivers who download its application. Viewing Uber’s relationship with its drivers in this light, the texts from Uber seeking to recruit drivers were not attempts to promote a “good” (its application) to those drivers, but instead was an attempt to recruit drivers so that those potential drivers could provide services to riders.  Accordingly, the Court finds that, given the allegations in the complaint, the texts at issue do not contain advertisements and do not constitute telemarketing.

Judge Tigar then addressed whether plaintiffs who completed an Uber application and gave their cell phone number could state a claim.  Judge Tigar said that this was enough to demonstrate consent, even under the FCC’s pronouncement last week.

The FCC’s most recent order, released on July 10, 2015, elucidated that there is not a specific method by which a caller must obtain prior express consent, only that the consent must be express and not implied or presumed. See 2015 FCC Order, ¶¶ 49, 52. Express consent can be demonstrated when the called party gives her wireless number to the person initiating the phone call “without instructions to the contrary.” Id., ¶ 52.  For the foregoing reasons, the Court agrees with Uber that any plaintiff who provided her phone number as part of the Uber application process consented to receive Uber’s texts about becoming an Uber driver.

As to the named Plaintiffs, Judge Tigar said that those who started but did not complete the Uber application could get past the pleadings stage, because they had not unmistakably consented.

A close analogy would be a job applicant who goes in person to a local business. She might sit at a table, and fill out a paper application, providing such details as her address and mobile phone number, date of birth, and other personal information. While on the premises of the business, however, she has a change of heart, and decides not to apply for the job after all. She does not complete her application or turn it in, and instead, throws it away when she gets home. Has she “provided” her mobile phone number to the business, just because an employee of the business looked over her shoulder while she was writing? More specifically, has she, to use the language of the 1992 FCC Order, “provided [her mobile phone number] as one to which the called party wishes to be reached”? The Court would find it difficult to hold that she has done so as a matter of law.   The Court need not answer these questions now, because the question now before the Court is the sufficiency of the complaint. Whether these plaintiffs actually “provided” their numbers to Uber within the meaning of the 1992 FCC Order can be decided on another day. At the motion to dismiss stage, it is sufficient to observe that the Court cannot conclude merely from the face of the complaint that these four plaintiffs consented to receive Uber’s texts. See Sams, 713 F.3d at 1179 (allegations of the complaint by themselves must establish the defense). As to all Class B plaintiffs other than Reardon, the motion must therefore be denied.