In San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., 2017 WL 4536422, at *2 (N.D.Cal., 2017), Judge Davila found that a confirming text may be, on the facts pleaded, an advertisement that triggers the TCPA.
Defendants contend that the text is not advertising or telemarketing because it does not encourage Plaintiff to purchase property, goods or services. Plaintiff argues that the text advertises the commercial availability of a service, namely Defendants’ app, and therefore the text constitutes advertising within the meaning of the TCPA. Plaintiff reasons that the app itself is one of Defendants’ products, and that by explicitly including a link to download that app, they are advertising the app’s commercial availability.  In Five Stars, the plaintiff received a similar text after speaking to a cashier about defendant’s rewards program and providing his telephone number: “Welcome to Five Stars, the rewards program of Flame Broiler. Reply with your email to finish registering and get free pts! Txt STOP to unsubscribe.” Id. at *1. The Five Stars court held that the text did not include or introduce an advertisement and did not constitute telemarketing. Id. at *5. Similarly, in Aderhold v. Car2go N.S., LLC, No. 13-cv-00489, 2014 WL 794802, at *1 (W.D. Wash. Feb. 27, 2014), the plaintiff received a text from Car2go, a car-sharing service stating: “Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.” The Car2go court found that the text was sent for the limited purpose of permitting plaintiff to complete his registration, and therefore did not violate the TCPA.  Unlike Five Stars, the text at issue does not instruct Plaintiff to take any action to “finish registering.” Instead, the text reads, “[t]hank you for joining Häagen-Dazs Rewards!,” which suggests that Plaintiff had already joined Häagen-Dazs Rewards before Defendants sent the text. The text in Car2go instructed the recipient to use the link to complete registration, and is therefore also distinguishable from the text Plaintiff received from Defendants. If the registration for Häagen-Dazs Rewards was completed before the receipt of the text and without the need to download Defendants’ app, then Defendants’ message to “Download our app here,” arguably constitutes an advertisement for the commercial availability of Defendants’ app. Construing the alleged facts in the light most favorable to Plaintiff, the Court finds Plaintiff’s allegations sufficient at the pleading stage.