In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA.  The facts alleged were as follows:

The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management, LLC; V Theater Group, LLC; and Saxe Theater, LLC. Plaintiffs allege that the Saxe Defendants acquired the cellular telephone numbers of Plaintiffs [*2]  and made representations that the cellular telephone numbers would not be used to send uninvited text message advertisements. They allege that the Saxe Defendants devised the idea to send telemarketing text messages and authorized, approved, and ratified a telemarketing text message program which sent Plaintiffs messages without their consent. Plaintiffs allege that Twilio collaborated as to the development, implementation, and maintenance of the telemarketing text message program. Specifically, they allege that Twilio committed the following acts: (1) joined their software and hardware with David Saxe Productions, LLC’s (“DSP”) to create, sort, and send hundreds of thousands of text message advertisements to cellular telephone numbers in an automated manner; (2) caused its devices to store the telephone numbers and messages, prioritized in what sequence the text messages would be sent to the various cellular telephone carriers to which each telephone number, and ensured that the text messages were not blocked by cellular telephone carriers as telemarketing spam; (3) controlled when and how each of the telemarketing text messages was delivered to the cellular telephone numbers of their intended [*3]  recipients; (4) provided DSP with software code tailored for DSP’s devices to enable and facilitate the automated transmission of telemarketing text messages with the assistance of Twilio; (5) provided help and advice to DSP on how to ensure their telemarketing program would not run afoul of spam filters of cellular telephone carriers that are intended to block such uninvited telemarketing; (6) helped DSP obtain a short code telephone number for the telemarketing program to aid in bypassing the spam filters of cellular telephone carriers; (7) helped DSP obtain a short code telephone number for the telemarketing program to aid in bypassing the spam filters of cellular telephone carriers; and (8) assigned DSP a mobile marketing campaign specialist who was specifically authorized by Twilio to ensure that the telemarketing text message program was a success. Plaintiffs allege that the telemarketing text message program could not have worked without the knowledge, authorization, approval, ratification, participation, and/or active support of Twilio.

The District Court found the TCPA claim adequately pleaded against Twilio.

“The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); 47 U.S.C. § 227(b)(1)(A)(iii). The definition of “called” includes the sending of a text message. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). The TCPA grants a private right of action to individuals seeking to enjoin or recover damages for violations of the Act. 47 U.S.C. § 227(b)(3). The TCPA creates liability for those who “make any call . . . using any automatic telephone dialing system or an articular or prerecorded voice” to a cellular telephone. 47 U.S.C. [*7]  § 227(b)(1)(A)(iii). The parties dispute the definition of the verb “make.” Twilio argues that the TCPA can apply only to parties that initiate text messages, not to parties that transmit them. Plaintiffs respond that “make” is broader than “initiate” and includes taking steps necessary to make a call or send a text. In interpreting the statute, the Court gives deference to the Federal Communications Commission (“FCC”). Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 949 (9th Cir. 2009); – 4 – see also Chevron v. Natural Res. Def. Council, Inc.,467 U.S. 837, 843-44 (1984). In 2016, the FCC weighed in on the question of whether test broadcasters could be “senders” of text messages under § 227(b)(1) of the TCPA. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 31 F.C.C. Rcd. 88, 90 (2016). The FCC clarified that “text broadcasters can be liable for TCPA violations” based on an analysis of the “totality of the facts and circumstances surrounding the placing of a particular call.” Id. at 91 (emphasis omitted). As part of the totality of the circumstances test, a decisionmaker considers: “1) who took the steps necessary to physically place the call; and 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 purposes of the TCPA,” as well as whether a text broadcaster “knowingly allowed its client(s) to use that platform for unlawful [*8]  purposes.” Id. The Court finds that Plaintiffs state a claim for Twilio’s liability under the TCPA that is plausible on its face. Accepting the facts in Plaintiffs’ complaint as true, Twilio took steps necessary to send the automated text messages. Twilio’s alleged involvement was to an extent that Twilio could be considered to have initiated the contact, considering the TCPA’s goal of limiting the nuisance and invasion of privacy caused by automated calls and text messages. Plaintiffs also allege that Twilio not only knowingly allowed DSP to use their platform for automated text messages but actively helped DSP bypass spam filters. Because the FCC has determined that transmitters can be liable under the TCPA under certain circumstances, and because Plaintiffs allege circumstances under which liability is plausible, Plaintiffs state a claim against Twilio under the TCPA.