An Phan v. Agoda Company Pte. Ltd. et al, No. 5:2016cv07243 - Document 76 (N.D. Cal. 2018)
Court Description: ORDER GRANTING 37 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 12/13/2018.(blflc2S, COURT STAFF) (Filed on 12/13/2018)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 AN PHAN, Case No. 16-cv-07243-BLF Plaintiff, 8 v. 9 10 AGODA COMPANY PTE. LTD., Defendant. United States District Court Northern District of California 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Re: ECF 37] 12 13 On four separate occasions after booking travel on Defendant Agoda Company Pte. Ltd.’s 14 website, Plaintiff An Phan received a text message from Agoda that read “Good news! Your 15 Agoda booking [number] is confirmed. Manage your booking with our free app http://app- 16 agoda.com/GetTheApp.” Plaintiff filed this putative class action asserting a single cause of action: 17 violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. Before 18 the Court is Defendant’s pre-certification motion for summary judgment. See ECF 37. The sole 19 question the Court must answer is whether the text messages Phan received qualify as advertising 20 or telemarketing under the TCPA. The Court holds that they do not. Accordingly, for the reasons discussed below, Agoda’s motion for summary judgment is 21 22 GRANTED. 23 I. FACTS1 24 A. 25 Defendant Agoda Company Pte. Ltd. (“Agoda”) is an international travel service provider 26 Agoda’s Booking Process and Policies based in Singapore that allows consumers to book travel accommodations, including hotels and 27 28 1 The facts relevant to this motion are undisputed, except as otherwise noted. United States District Court Northern District of California 1 flights, online. See Compl. ¶ 11. ECF 1-2; Decl. of Alexis Siarkiewicz ISO MSJ ¶¶ 2–3 2 (“Siarkieweicz Decl.”), ECF 37-2. Agoda has both a website and a phone app that allow 3 customers to make bookings through substantively similar processes. Decl. of Anne Kelts ISO 4 MSJ (“Kelts Decl.”), Ex. 2 at 28–30, ECF 37-9. The app, like the website, has various 5 functionalities, including allowing users to manage travel reservations, access vouchers and 6 confirmation numbers, and locate booking properties on a map. Id. at 31; Kamonchanok 7 Rattanasrimata Decl. ISO MSJ ¶¶ 9–10 (“Rattanasrimata Decl.”), ECF 37-4. The app allows 8 customers to both manage existing bookings and create new bookings. See Zelenski Decl. ISO 9 Opp. to MSJ (“Zelenski Decl.”), Ex. 1 at 14, 18–19, ECF 43-1. And the app is capable of 10 “offering lower prices than those available on Agoda’s website” and “showing deals that could not 11 be shown on Agoda’s website.” Id. at 20–21. Agoda also advertises the app as having these 12 capabilities. Id. at 19–21. 13 During the booking process, the customer first chooses the specifics of his booking, such 14 as location, travel dates, and number of travelers. Id. at 28. Once the customer has selected these 15 criteria, he enters in his personal information, either by signing into an existing Agoda account or 16 continuing as a guest, and then proceeds to the payments page. Id. On the payments page, the 17 customer enters the necessary information to pay for his booking, though the customer can choose 18 to pay at the time of booking or pay later. Id. at 29. On that same page, in blue hyperlinked text, 19 are the terms “privacy policy” and “general terms,” which link the user to the full text of Agoda’s 20 Privacy Policy and Terms of Use, respectively. Id. at 8, 30. Agoda represents that its Privacy 21 Policy and Terms of Use have remained materially the same since 2013, the beginning of the 22 putative class period here. See id. at 8; Compl. ¶ 30. 23 Directly above the “Book Now” button, also on the payments page, is the statement “I 24 agree with the Privacy Policy and general terms by booking this room.” Id. at 29. By completing 25 the booking and agreeing to Agoda’s Terms of Use, the customer agrees “to receive confirmation 26 messages (email and/or SMS),” which the Terms of Use describe as “transactional” and as “not 27 part of the newsletters or marketing mails[] from which [users] can unsubscribe.” Kelts Decl., Ex. 28 3 at AG000089. The Privacy Policy further states that the “confirmation” text messages “are not 2 1 marketing messages,” but instead are “part of [the user’s] accommodation reservation process” 2 and “contain information for [the user] to check in at [his] booked accommodation.” Id., Ex. 4 at 3 AG000096. The user cannot opt out of these text messages. Id. United States District Court Northern District of California 4 Before the booking process is completed, the customer also selects whether to “opt in” or 5 “opt out” of receiving Agoda’s marketing promotions. Decl. of Richard Lyne ISO MSJ ¶ 6 6 (“Lyne Decl.”), ECF 37-1. Once the booking process is completed, and the third-party hotel has 7 confirmed to Agoda the customer’s reservation, Agoda, through its third-party global messaging 8 service provider Clickatell, sends a text message to the customer to confirm the booking. Kelts 9 Decl., Ex. 2 at 30; Kelts Decl., Ex. 1 ¶ 5, ECF 37-8. Agoda sends confirmation text messages only 10 to users who have both provided their phone numbers and agreed to Agoda’s Terms of Use and 11 Privacy Policy. See id., Ex. 2 at 7. Agoda sends these text messages, in part, “to encourage 12 customers to download the Agoda mobile-device application in order to manage with the Agoda 13 app the requested booking, and also in part, . . . to confirm the requested booking for the 14 customer.” See Zelenski Decl., Ex. 2 at 10, ECF 43-2. Phan’s Use of Agoda’s Services and Receipt of Text Messages 15 B. 16 On November 4, 2016, Plaintiff An Phan booked three hotel reservations through Agoda’s 17 website, and he made a fourth reservation on November 10, 2016. See Compl. ¶¶ 18–19; Kelts 18 Decl., Ex. 2 at 14. For each booking, Phan provided his telephone number and agreed to the 19 Terms of Use and Privacy Policy. Id. at 15. He also opted in to receiving marketing messages 20 during the time period at issue here. Rattanasrimata Decl., Ex. A, ECF 37-5. At the hearing on 21 this motion, the parties disputed whether Phan paid for the booking at the time of booking or later 22 when he completed his travel. After Phan completed each booking, Agoda sent him the following 23 text message: “Good news! Your Agoda booking [number] is confirmed. Manage your booking 24 with our free app http://app-agoda.com/GetTheApp.” Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The 25 URL contained a hyperlink to download Agoda’s app. Id. 26 C. 27 On November 14, 2016, Plaintiff filed the instant class action Complaint in the Superior 28 Court of California for the County of Santa Clara against Agoda, Agoda International USA Inc., Procedural History 3 1 and the Priceline Group Inc. See generally Compl. In his Complaint, Plaintiff asserts a single 2 cause of action under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. 3 § 227. On December 19, 2016, the case was removed to this Court. See ECF 1. On January 23, 4 2017, Plaintiff voluntarily dismissed the two non-Agoda Defendants with prejudice. See ECF 12. 5 On January 26, 2017, Agoda filed an Answer to the Complaint. See ECF 15. On April 25, 2017, 6 the Court held a case management conference, setting the deadline to hear dispositive motions in 7 this case to December 12, 2019. The parties later stipulated that fact discovery would close on 8 February 10, 2020. ECF 27. On June 21, 2018, Agoda filed the instant motion for summary 9 judgment, ECF 37, and the Court held a hearing on the motion on November 8, 2018, ECF 74. 10 United States District Court Northern District of California 11 The Court has not yet certified a class in this case. II. LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 12 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 14 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 15 56(a)). The moving party has the burden of establishing that there is no dispute as to any material 16 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The court must view the evidence in 17 the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s 18 favor.” City of Pomona, 750 F.3d at 1049. “[T]he ‘mere existence of a scintilla of evidence in 19 support of the plaintiff’s position’” is insufficient to defeat a motion for summary judgment. Id. 20 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “‘Where the record taken as 21 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine 22 issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 23 574, 587 (1986)). 24 III. DISCUSSION 25 In its motion for summary judgment, Agoda argues that the Court should grant summary 26 judgement on Phan’s sole claim, for violation of the TCPA, for three reasons: (1) Phan provided 27 the required level of consent under the TCPA because the text messages he received did not 28 contain advertising and were not telemarketing; (2) Phan waived his rights to assert his TCPA 4 1 claim by agreeing to Agoda’s Terms of Use and Privacy Policy and by continuing to make 2 bookings with Agoda after receiving the allegedly unlawful text messages; and (3) Phan agreed to 3 a Singapore choice of law and venue clause in the Terms of Use. See Mot. at 3–4. As discussed 4 below, the Court agrees with Agoda’s first argument, and thus does not address Agoda’s second 5 and third arguments. 6 A. The TCPA makes it “unlawful for any person within the United States . . . (A) to make any 7 United States District Court Northern District of California Requirements Under the TCPA 8 call (other than a call made for emergency purposes or made with the prior express consent of the 9 called party) using any automatic telephone dialing system . . . (iii) to any telephone number 10 assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). “The three elements 11 of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic 12 telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio 13 Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). Text messages are considered 14 “calls” under the TCPA. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 15 2009). 16 As to the third element, consent is an affirmative defense on which the defendant bears the 17 burden of proof. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 18 2017). The type of consent required depends on the content of the message. If the text message 19 “includes or introduces an advertisement or constitutes telemarketing,” the sender is required to 20 obtain “prior express written consent” of the recipient. 47 C.F.R. at §§ 64.1200(a)(1) and (2) 21 (emphasis added). To constitute advertising, the text message must contain “material advertising 22 the commercial availability or quality of any property, goods, or services.” Id. § 64.1200(f)(1). 23 To constitute telemarketing, the text message must be “for the purpose of encouraging the 24 purchase or rental of, or investment in, property, goods, or services.” Id. § 64.1200(f)(12). Courts 25 approach the question of whether a message constitutes advertising or telemarketing with “a 26 measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). 27 If the message contains advertising or is telemarketing, the sender must have secured, prior to 28 sending the message, the signature of the recipient in a written agreement that includes several 5 1 United States District Court Northern District of California 2 specified disclosures. See 47 C.F.R. § 64.1200(f)(8). If the text message does not contain advertising and is not telemarketing, the requirements 3 for prior express consent are less stringent. A consumer must only “knowingly” agree to receive 4 such messages by providing his phone number for the reasons served by the message (i.e., to 5 transact the business contemplated when the recipient provided his number). See Van Patten, 847 6 F.3d at 1044–45. 7 Finally, if the text message serves a “dual purpose”—that is, includes both 8 advertising/telemarketing and merely informational or transactional communications—the 9 messages are subject to the heightened express written consent requirements. See In the Matter of 10 Rules and Regulations Implementing the TCPA of 1991, Report and Order, 18 FCC Rcd. 14014, 11 14097–99 (July 3, 2003). 12 B. 13 Though a claim under the TCPA has three elements, Agoda does not dispute that Phan Application of the TCPA to the Text Messages Received by Phan 14 satisfies the first two elements of the TCPA claim—that Agoda sent text messages to Phan’s 15 cellular phone using an automatic telephone dialing system. See generally Mot. (failing to 16 challenge these elements). Instead, Agoda’s motion for summary judgment argues that it wins on 17 the third element, because it has successfully established an affirmative defense of consent. See 18 Reply at 3, ECF 46 (“[T]he parties’ only disagreement” is “whether or not the text messages that 19 Plaintiff received can be classified as telemarketing or advertising under the TCPA . . . such that 20 Plaintiff’s actions constituted sufficient consent.”); Opp. at 1 (“[T]he only element at 21 issue . . . is . . . whether Agoda’s messages were sent without Plaintiff’s consent.”). The question 22 of whether Phan consented turns solely on whether the text messages here contained advertising or 23 constituted telemarketing. Indeed, Phan concedes that his claim fails if the text messages are 24 neither advertising nor telemarketing. See Opp. at 24 (“Plaintiff agrees with the notion that, if the 25 at-issue messages do not constitute advertising or telemarketing, they do not violate the TCPA.”). 26 Agoda argues in its motion that the text messages were neither advertising nor 27 telemarketing, but instead were “merely transactional” because they served only two purposes: (1) 28 to confirm “that [Phan’s] bookings were reserved with the third party hotel”; and (2) to direct Phan 6 1 to the app “to locate and modify the booking prior to the completion of [his] stay.” Mot. at 11. As 2 to the latter purpose, Agoda argues that directing Phan to the app so he could modify his booking 3 was merely transactional because the business transaction between Agoda and Phan did not 4 conclude until Phan completed his stay at the hotels he booked through Agoda. Id. at 14. Because 5 the transaction was ongoing at the time the text messages were sent, the argument goes, the link to 6 the app was directed at completing the ongoing transaction, as opposed to marketing a separate 7 product. Id. at 13–14 (citing Aderhold v. car2go N.A., LLC (“Aderhold II”), No. 14-35208, 668 8 Fed. App’x 795, 796 (9th Cir. 2016)). For the same reasons, the inclusion of the hyperlink to the 9 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 United States District Court Northern District of California 10 11 merely transactional, because the business transaction was completed at the time of booking, 12 rendering the app-download link “superfluous.” Opp. at 18; see Opp. at 22 (“Plaintiff’s 13 bookings . . . were complete as of the date he received his messages.”). Moreover, Phan asserts, 14 the messages “were sent specifically to encourage the use of the app” and “the app was 15 specifically designed to allow message recipients to undertake transactions having nothing to do 16 with the reservation that was being confirmed by the text messages themselves.” Id. at 20. As 17 such, regardless of the partially confirmatory nature of the text messages, the link to the app 18 served to advertise or market the commercial availability of a separate Agoda product. See Opp. 19 at 3. In making their arguments, both parties analogize to and distinguish manifold cases in this 20 21 Circuit and others. A review of this case law is instructive here. In Aderhold II, the Ninth Circuit affirmed the district court’s ruling that the text message at 22 23 issue was not “telemarketing.”2 668 Fed. App’x at 796. The plaintiff in that case had signed up 24 for a car-sharing service and immediately received a text message prompting him to enter an 25 26 27 28 2 Though the Ninth Circuit discussed only telemarketing, the district court necessarily held that the text message was neither advertising nor telemarketing, because it held that it did not need to determine whether the plaintiff had provided the express written consent necessary for advertising or telemarketing texts. See Aderhold v. Car2go N.A., LLC (Aderhold I), No. C13-489-RAJ, 2014 WL 794802, at *10 (W.D. Wash. Feb. 27, 2014). 7 1 activation code into a link emailed to him. See Aderhold v. Car2go N.A., LLC (Aderhold I), No. 2 C13-489-RAJ, 2014 WL 794802, at *1 (W.D. Wash. Feb. 27, 2014). The district court concluded 3 that the message was not telemarketing because it served the limited purpose of allowing the 4 plaintiff to complete his registration. Id. at *9. The court rejected the plaintiff’s argument that 5 diversion to the defendant’s website was sufficient to render the message telemarketing simply 6 because the website also contained promotions for the defendant’s services. Id. In affirming, the 7 Ninth Circuit agreed with the district court that the “message contain[ed] no content encouraging 8 purchase of [the defendant’s] services” and was “directed instead to completing the registration 9 process.” Aderhold II, 668 Fed. App’x at 796. United States District Court Northern District of California 10 Importantly, the Ninth Circuit followed a Federal Communications Commission’s 11 determination that messages “whose purpose is to facilitate, complete, or confirm a commercial 12 transaction that the recipient has previously agreed to enter into with the sender are not 13 advertisements.” Id. (quoting In re Rules & Regs. Implementing the Tel. Consum. Prot. Act of 14 1991 (“In re Rules”), 21 FCC Rcd. 3787, 3812 ¶ 49 (Apr. 6, 2006)). One example provided by the 15 FCC of a message that would not be an unsolicited advertisement was “[a] travel itinerary for a 16 trip a customer has agreed to take or is in the process of negotiating.” In re Rules, 21 FCC Rcd. 17 3787, 3813 ¶ 49. The FCC ultimately held that messages “relat[ing] specifically to existing 18 accounts and ongoing transactions” do not constitute advertising. Id. at 3812 ¶ 49. 19 Using the same rationale, several district courts have held that messages or calls were not 20 advertising or telemarketing because they pertained to ongoing transactions. In Wick v. Twilio 21 Inc., the plaintiff provided his personal information, including his telephone number, in the course 22 of ordering a free sample on a website, but abandoned the order before completing it. No. C16- 23 00914RSL, 2016 WL 6460316, at *1 (W.D. Wash. Nov. 1, 2016). He then received a text 24 message (and call) instructing him to follow a link to complete his order. The court held this 25 message was not telemarketing because “the purpose of these communications was customer 26 service” and “related solely to the consumer transaction [the plaintiff] had initiated” but not yet 27 completed. Id. at *2. The plaintiff had not alleged that the text “offered or encouraged the 28 purchase of any product” other than the product he had begun to order online. Id. 8 1 2 rewards program and received a text message instructing him to “reply with [his] email to finish 3 registering and get free pts!” No. 15-CV-03546-WHO, 2015 WL 7454260, at *1 (N.D. Cal. Nov. 4 24, 2015). The Court agreed with the Aderhold I court that “a text sent solely for the purpose of 5 allowing the recipient to complete a registration process that he or she initiated” did not constitute 6 telemarketing. Id. at *4. Specifically, the text message at issue was not telemarketing because it 7 did not “urge [the plaintiff] to ‘redeem’ Five Stars points, did not direct him to a location where 8 points could be redeemed or where more information about the Five Stars program could be 9 obtained, and did not reference shopping or purchasing.” Id. at *5. 10 United States District Court Northern District of California Similarly, in Daniel v. Five Stars Loyalty, Inc., the plaintiff signed up for a Five Points The court in Mackinnon v. Hof’s Hut Restaurants, Inc. came to the same conclusion, albeit 11 in a somewhat different scenario. No. 2:17-cv-01456-JAM-DB, 2017 WL 5754308 (E.D. Cal. 12 Nov. 28, 2017). In that case, the plaintiff made a dinner reservation at the defendant restaurant 13 and provided his phone number to receive confirmation of the reservation. Id. at *1. The 14 defendant sent him a text message confirming the reservation and providing a link to “view 15 specials.” Id. The Court held that the text message was not advertising or telemarketing because 16 it “only served to confirm an expected commercial transaction (eating at Defendant’s restaurant) 17 that Plaintiff had initiated.” Id. at *2 (citing Daniel and Wick). The inclusion of the link to view 18 specials did not make the message advertising because it merely “facilitated Plaintiff’s dining 19 transaction by allowing him to view specials on his cellphone before sitting down to dinner.” Id. 20 See also Smith v. Blue Shield of Cal. Life Ins. Co., 228 F. Supp. 3d 1056, 1067 (C.D. Cal. 2017) 21 (“[M]ere fact that parts of [the defendant’s] website contains the capability of allowing consumers 22 to engage in commerce does not transform any message including its homepage into telemarketing 23 or advertising”); accord Reese v. Marketron Broad. Sols., Inc., No. CV 18-1982, 2018 WL 24 2117241, at *5 (E.D. La. May 8, 2018). 25 Other district courts have applied the TCPA to hold that certain calls and messages did 26 constitute advertising or telemarketing. In Pedro-Salcedo v. Haagen-Dazs Shoppe Co., Inc., the 27 plaintiff allegedly enrolled in store in the defendant’s rewards program and later that day received 28 a text message stating, “Thank you for joining Häagen-Dazs Rewards! Download our app here: 9 United States District Court Northern District of California 1 [link].” No. 5:17-CV-03504-EJD, 2017 WL 4536422, at *1 (N.D. Cal. Oct. 11, 2017). The court 2 held that the plaintiff had stated a claim that the text was advertising or telemarketing. Id. at *2. 3 In doing so, the court distinguished the texts at issue in Daniel and Aderhold I because in those 4 cases the links were included to allow the recipient to complete a registration, whereas the text in 5 Haagen-Dazs made clear on its face that the recipient had already “join[ed]” the rewards program. 6 Id. As such, the encouragement to “download [the] app” was unnecessary and could constitute an 7 advertisement. 8 Similarly in Herrick v. QLess, Inc., the Court held that two messages related to plaintiffs’ 9 wait times at certain establishments were advertisements. 216 F. Supp. 3d 816, 817 (E.D. Mich. 10 2016). The first message encouraged the plaintiffs to sign up for an app that would allow them to 11 see their “wait in real time, control when [they] get served & find more places with no lines— 12 [link]” and, the second message both informed them that their wait was over and included a link to 13 the defendant’s website. Id. The court held the messages were advertising because they 14 “advertised a ‘free’ app for the purpose of conveying the quality of [defendant’s] products and 15 services and soliciting plaintiffs to recruit more business customers.” Id. at 819. In so holding, 16 the Court rejected the defendant’s argument that the free nature of the app rendered it merely 17 informational. Id. However, the Herrick court did not explicitly consider whether the transaction 18 at issue (namely, the plaintiffs’ wait) was ongoing or had otherwise concluded. 19 20 21 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, 22 these messages were sent as part of an ongoing business transaction between Agoda and Phan. 23 Phan used Agoda’s services to book a travel itinerary online. Up until the time he finished his 24 travel, he could cancel that booking or otherwise modify it through Agoda. Kelts Decl., Ex. 2 at 25 31; Rattanasrimata Decl. ¶¶ 9–10. As such, his transactional relationship with Agoda as to each 26 booking continued through the time when he completed his travel. This scenario is directly 27 comparable to Mackinnon, where the restaurant reservation was booked, but was not completed 28 until the plaintiff ate dinner at the restaurant. Even assuming Phan paid for his booking on 10 1 Agoda’s website at the time of booking (as opposed to at the time of travel), this fact does not 2 change the Court’s conclusion. Phan contracted with Agoda for the provision of travel 3 accommodations; Agoda’s obligations were only completed by its successfully providing those 4 accommodations to Phan at the time of Phan’s travel. The content of the messages reinforces this conclusion. The text messages read: “Good United States District Court Northern District of California 5 6 news! Your Agoda booking [number] is confirmed. Manage your booking with our free app 7 http://app-agoda.com/GetTheApp.” Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The plain language of 8 the text messages is limited to (1) confirming the booking (a purpose no court cited by Phan has 9 found constitutes advertising or telemarketing); and (2) encouraging Phan to “manage [his] 10 booking” via the app. See also Zelenski Decl., Ex. 2 at 10. These two purposes directly related to 11 Phan’s transaction with Agoda.3 This language distinguishes this case from Haagen-Dazs, 2017 12 WL 4536422, at *1–*2, where the app link was included without an attendant function relevant to 13 the transaction, and from Herrick, 216 F. Supp. 3d at 817–18, where the app link in the first 14 message was included, in part, to “find more places with no line” and the website link in the 15 second message was included without an attendant function relevant to the transaction. The Court recognizes that this scenario is not directly comparable to those in Aderhold, 16 17 Wick, and Daniel, where the plaintiffs each had to take an additional step before their agreements 18 with the defendants were final. However, the focus of each of these cases was on whether the text 19 messages were directly germane to the transaction. See Wick, 2016 WL 6460316, at *2 (holding 20 purpose of text message was customer service related to transaction); Aderhold I, 2014 WL 21 794802, at *9 (concluding text message served limited purpose relevant to transaction); Daniel, 22 2015 WL 7454260, at *4 (same); see also In re Rules, 21 FCC Rcd. at 3812 ¶ 49 (concluding that 23 a message is not advertising if its “purpose is to facilitate, complete, or confirm a commercial 24 transaction”). Here, the context and the content of the messages demonstrate that the purpose of 25 the messages was not to advertise or telemarket, but instead was directly cabined to facilitating 26 and completing an existing transaction. 27 28 3 Because the Court concludes that the messages did not have any marketing or advertising component, the dual purpose doctrine is inapposite. 11 Agoda’s inclusion of the link to the app does not change this analysis. Nothing in the United States District Court Northern District of California 1 2 context or content of the messages indicates that the purpose of the messages was to “encourag[e] 3 the purchase . . . of . . . property, goods, or services,” as would be necessary for it to constitute 4 telemarketing.4 In fact, these messages are even more innocuous than those in either Daniel, 2015 5 WL 7454260, at *1, which encouraged the recipient to click the link to get free points, or 6 Mackinnon, 2017 WL 5754308, at *1, which encouraged users to look at specials (as opposed to, 7 say, managing their reservations). Ultimately, as in Aderhold II, the messages here “contain[ed] 8 no content encouraging purchase of [Agoda] services.” 668 Fed. App’x at 796. 9 And the inclusion of the link to the app is not enough to warrant holding that these 10 messages were advertising under the TCPA. Though the app may fairly be considered a product 11 or service of Agoda, the messages simply cannot be said to advertise the commercial availability 12 of this product or service under the law. The app is readily analogized to Agoda’s website, as the 13 two platforms have substantially similar processes for booking travel and most (if not all) of the 14 same functions. See Kelts Decl., Ex. 2 at 28–30. The court in Aderhold I rejected the argument 15 that inclusion of a link to a website that contained promotions was sufficient to render the 16 messages advertising or telemarketing. 2014 WL 794802, at *9; accord Smith, 228 F. Supp. 3d at 17 1067; Reese, 2018 WL 2117241, at *5. The same is true for the app. Even though it contains 18 certain promotions, see Zelenski Decl., Ex. 1 at 20–21, the app was included “to facilitate, 19 complete, or confirm a commercial transaction,” making the link to it fully germane to the 20 transaction. In re Rules, 21 FCC Rcd. at 3812 ¶ 49. Put simply, Agoda was not advertising the 21 app’s commercial availability. To hold otherwise would run headlong into the decisions in this 22 Circuit and others holding that inclusion of the link to a defendant’s website, without more, does 23 not render a message advertising or telemarketing. For these reasons, the Court holds that the messages at issue here were neither advertising 24 25 26 27 28 4 In his opposition, Phan requested that he be given the opportunity to complete certain discovery related to the purpose of the messages if the Court were inclined to rule that the messages were neither advertising nor telemarketing. See Opp. at 4–5, 13–15. At the hearing on the motion, Phan conceded that he had conducted such discovery prior to the hearing, and he withdrew his request. 12 1 nor telemarketing as defined by the TCPA. As such, Agoda needed only Phan’s express consent 2 prior to sending the messages. There is no dispute that Agoda received such consent because 3 Plaintiff voluntarily provided his phone number and agreed to Agoda’s Terms of Use and Privacy 4 Policy, which made clear that such messages would be sent. See Aderhold II, 668 Fed. App’x at 5 796 (“The [FCC] has determined that ‘persons who knowingly release their phone numbers have 6 in effect given their invitation or permission to be called at the number which they have given, 7 absent instructions to the contrary.’” (quoting In re Implementing the Tel. Consumer Prot. Act of 8 1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992))); Opp. at 2 (acknowledging that 9 the express prior consent standard is “relatively low” and “requir[es] only that consumers 10 ‘knowingly’ agree to receive such calls”). As such, based on the undisputed facts in the record, the messages were neither advertising United States District Court Northern District of California 11 12 nor telemarketing and Agoda received prior express consent from Phan. Agoda has thus 13 successfully demonstrated that it is entitled to judgment as a matter of law on the affirmative 14 defense of consent. See City of Pomona, 750 F.3d at 1049; Fed. R. Civ. P. 56(a). 15 16 17 IV. ORDER For the foregoing reasons, Agoda’s motion for summary judgment is GRANTED on its only claim, for violation of the TCPA. 18 19 20 IT IS SO ORDERED. 21 22 23 24 Dated: December 13, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 25 26 27 28 13
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