In Wick v. Twilio, Inc., 2017 WL 2964855, at *4 (W.D.Wash., 2017), Judge Laznik found that Twilio might have used an ATDS, if it was Twilio who placed the call.
Contrary to Twilio’s argument, the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content. Rather, the totality of the facts and circumstances surrounding the call must be considered when determining whether the customer and/or the host initiated the call. For purposes of this motion, the allegations of the Second Amended Complaint provide the operative facts and must be taken as true. Twilio fails to acknowledge, much less address, many of plaintiff’s allegations, instead asserting that “[p]laintiff merely alleges that [he] found Twilio’s name in a reverse lookup directory.” Dkt. # 51 at 19. Plaintiff, for his part, relies heavily on allegations regarding what Twilio’s software program is able to do, not what Twilio actually did to send the text message at issue here. Allegations regarding the ability of Twilio’s cloud-based servers to add content to messages (e.g., the weather forecast in San Francisco), to generate a list of numbers to dial, and to generate and deliver automated speech messages do not seem to have any applicability to the message plaintiff received and are irrelevant to this analysis. Nevertheless, there are allegations regarding Twilio’s operations that, taking all inferences in favor of plaintiff, apply to the message at issue here and would support a finding that Twilio initiated the text message. As an initial matter, plaintiff alleges that Twilio’s system was programmed to dial his number and send the offending text message. With regards to message content, plaintiff alleges that Twilio creates (either automatically or through its “Developer Gallery”) messages for its customers and/or chops and reassembles content provided by customers to make it more palatable to carriers. Dkt. # 35 at ¶ 28 and ¶ 32. Plaintiff alleges that Twilio determines what number a message will be sent from in order to prevent messages from being filtered or rejected and to mask the source of the calls it initiates. Dkt. # 35 at ¶¶ 29-31. Plaintiff alleges that Twilio chooses the order and timing of messages to ensure that the rate at which they are received by the carrier stays below the carrier’s spam filter threshold. Dkt. # 35 at ¶ 33. Finally, plaintiff alleges that Twilio knows that its platform technology can be used to automatically send tens of thousands of text messages that violate the TCPA, has bragged that its customers have been able to spam mobile phones using its platform, and has failed to require its customers to certify that they are complying with the TCPA. Dkt. # 35 at ¶¶ 36-37. Taken together, these allegations suggest that Twilio’s services are not purely reactive in nature, but that it is an active participant in developing the message the recipient ultimately receives, controlling the initiation of the message (including line selection and timing) to avoid spam filters and hide the source of the call, and allowing, if not promoting, unsolicited text message campaigns on its platform. These allegations may ultimately be disproven, but that is not the issue on a motion to dismiss. Plaintiff has raised a plausible inference that Twilio could be held liable as the initiator of the text message he received. However, plaintiff’s allegations regarding the telephone call he received are insufficient to raise a plausible inference that Twilio initiated that call. Plaintiff alleges only that, immediately after he left Crevalor’s website, he received a phone call from a woman who aggressively pushed him to order his free product and requested his credit card information. The call lasted approximately three minutes, and the background noise gave plaintiff the impression that the woman was in a “call center.” Dkt. # 35 at ¶ 47. Plaintiff does not identify the caller’s telephone number and does not allege that he performed a reverse white pages look-up that connected Twilio to the call. Nor does his description of Twilio’s business model and platform technology suggest that it operates call centers or otherwise give rise to an inference that Twilio was in any way connected with the call. Plaintiff has failed to adequately allege a TCPA claim against Twilio with regards to the phone call.
But, the District Court found that the text messages were not telemarketing.
The Court previously concluded that the text message plaintiff received was not telemarketing because the message related to an order plaintiff had initiated. In his Second Amended Complaint, plaintiff provides additional allegations regarding his interaction with Crevalor’s website and copies of the two webpages he visited. A review of the allegations and attached exhibits shows that plaintiff entered his identifying information (name, address, phone number, and email), agreed to the offer’s terms and conditions, and clicked on the “Rush My Order” button before closing the webpage. Whatever his subjective intent regarding making a purchase, the text message he received was aimed at completing a commercial transaction that he had initiated and for which he had provided his phone number. See 2006 TCPA Declaratory Ruling, 21 FCC Rcd. at 3813, ¶ 49 (“A travel itinerary for a trip a customer has agreed to take or is in the process of negotiating is not an unsolicited advertisement.”) (emphasis added). Thus, the Court again concludes that the text message plaintiff received does not constitute telemarketing. Because plaintiff consented to the communications at issue when he submitted his telephone number as part of Crevalor’s ordering process, plaintiff fails to plead a TCPA violation.