District Court (Cal.) Says Text Messages Were Not Advertisements Under the TCPA

Though a claim under the TCPA has three elements, Agoda does not dispute that Phan satisfies the first two elements of the TCPA claim—that Agoda sent text messages to Phan’s cellular phone using an automatic telephone dialing system. See generally Mot. (failing to challenge these elements). Instead, Agoda’s motion for summary judgment argues that it wins on the third element, because it has successfully established an affirmative defense of consent. See Reply at 3, ECF 46 (“[T]he parties’ only disagreement” is “whether or not the text messages that Plaintiff received can be classified as telemarketing or advertising under the TCPA … such that Plaintiff’s actions constituted sufficient consent.”); Opp. at 1 (“[T]he only element at issue … is … whether Agoda’s messages were sent without Plaintiff’s consent.”). The question of whether Phan consented turns solely on whether the text messages here contained advertising or constituted telemarketing. Indeed, Phan concedes that his claim fails if the text messages are neither advertising nor telemarketing. See Opp. at 24 (“Plaintiff agrees with the notion that, if the at-issue messages do not constitute advertising or telemarketing, they do not violate the TCPA.”).  Agoda argues in its motion that the text messages were neither advertising nor telemarketing, but instead were “merely transactional” because they served only two purposes: (1) to confirm “that [Phan’s] bookings were reserved with the third party hotel”; and (2) to direct Phan to the app “to locate and modify the booking prior to the completion of [his] stay.” Mot. at 11. As to the latter purpose, Agoda argues that directing Phan to the app so he could modify his booking was merely transactional because the business transaction between Agoda and Phan did not conclude until Phan completed his stay at the hotels he booked through Agoda. Id. at 14. Because the transaction was ongoing at the time the text messages were sent, the argument goes, the link to the app was directed at completing the ongoing transaction, as opposed to marketing a separate product. Id. at 13–14 (citing Aderhold v. car2go N.A., LLC (“Aderhold II”), No. 14-35208, 668 Fed. App’x 795, 796 (9th Cir. 2016)). For the same reasons, the inclusion of the hyperlink to the app alone does not transform these transactional messages into advertising. See id. at 12. Phan, by contrast, argues that the messages were advertising or telemarketing, and not merely transactional, because the business transaction was completed at the time of booking, rendering the app-download link “superfluous.” Opp. at 18; see Opp. at 22 (“Plaintiff’s bookings … were complete as of the date he received his messages.”). Moreover, Phan asserts, the messages “were sent specifically to encourage the use of the app” and “the app was specifically designed to allow message recipients to undertake transactions having nothing to do with the reservation that was being confirmed by the text messages themselves.” Id. at 20. As such, regardless of the partially confirmatory nature of the text messages, the link to the app served to advertise or market the commercial availability of a separate Agoda product. See Opp. at 3. *5 In making their arguments, both parties analogize to and distinguish manifold cases in this Circuit and others. A review of this case law is instructive here. . . .In light of this case law and the requirements of the TCPA, this Court holds that the text messages Agoda sent to Phan were neither advertising nor telemarketing.  Both the context and the content of the messages dictate this result. As to the context, these messages were sent as part of an ongoing business transaction between Agoda and Phan. Phan used Agoda’s services to book a travel itinerary online. Up until the time he finished his travel, he could cancel that booking or otherwise modify it through Agoda. Kelts Decl., Ex. 2 at 31; Rattanasrimata Decl. ¶¶ 9–10. As such, his transactional relationship with Agoda as to each booking continued through the time when he completed his travel. This scenario is directly comparable to Mackinnon, where the restaurant reservation was booked, but was not completed until the plaintiff ate dinner at the restaurant. Even assuming Phan paid for his booking on Agoda’s website at the time of booking (as opposed to at the time of travel), this fact does not change the Court’s conclusion. Phan contracted with Agoda for the provision of travel accommodations; Agoda’s obligations were only completed by its successfully providing those accommodations to Phan at the time of Phan’s travel.  The content of the messages reinforces this conclusion. The text messages read: “Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp.” Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The plain language of the text messages is limited to (1) confirming the booking (a purpose no court cited by Phan has found constitutes advertising or telemarketing); and (2) encouraging Phan to “manage [his] booking” via the app. See also Zelenski Decl., Ex. 2 at 10. These two purposes directly related to Phan’s transaction with Agoda.³ This language distinguishes this case from Haagen-Dazs, 2017 WL 4536422, at *1–*2, where the app link was included without an attendant function relevant to the transaction, and from Herrick, 216 F. Supp. 3d at 817–18, where the app link in the first message was included, in part, to “find more places with no line” and the website link in the second message was included without an attendant function relevant to the transaction. . . .Agoda’s inclusion of the link to the app does not change this analysis. Nothing in the context or content of the messages indicates that the purpose of the messages was to “encourag[e] the purchase … of … property, goods, or services,” as would be necessary for it to constitute telemarketing.⁴ In fact, these messages are even more innocuous than those in either Daniel, 2015 WL 7454260, at *1, which encouraged the recipient to click the link to get free points, or Mackinnon, 2017 WL 5754308, at *1, which encouraged users to look at specials (as opposed to, say, managing their reservations). Ultimately, as in Aderhold II, the messages here “contain[ed] no content encouraging purchase of [Agoda] services.” 668 Fed. App’x at 796.    And the inclusion of the link to the app is not enough to warrant holding that these messages were advertising under the TCPA. Though the app may fairly be considered a product or service of Agoda, the messages simply cannot be said to advertise the commercial availability of this product or service under the law. The app is readily analogized to Agoda’s website, as the two platforms have substantially similar processes for booking travel and most (if not all) of the same functions. See Kelts Decl., Ex. 2 at 28–30. The court in Aderhold I rejected the argument that inclusion of a link to a website that contained promotions was sufficient to render the messages advertising or telemarketing. 2014 WL 794802, at *9; accord Smith, 228 F. Supp. 3d at 1067; Reese, 2018 WL 2117241, at *5. The same is true for the app. Even though it contains certain promotions, see Zelenski Decl., Ex. 1 at 20–21, the app was included “to facilitate, complete, or confirm a commercial transaction,” making the link to it fully germane to the transaction. In re Rules, 21 FCC Rcd. at 3812 ¶ 49. Put simply, Agoda was not advertising the app’s commercial availability. To hold otherwise would run headlong into the decisions in this Circuit and others holding that inclusion of the link to a defendant’s website, without more, does not render a message advertising or telemarketing.