164 F. Supp. 3d 1050
N.D. Ill.2016Background
- Payton and Kale’s owner Patterson exchanged emails in Dec. 2011 about a possible business merger; Payton provided his cellular number in at least three emails and never told Patterson not to call that number.
- In Oct. 2013 Payton received a single text from Kale (sent via VoiceShot) advertising Kale recruiting/compensation and a link to joinkale.com.
- VoiceShot is a web-based messaging platform that hosts subscribers, lets them upload/enter contact lists, compose messages, and transmit them by pressing a “begin” button; it does not create message content or provide recipient lists.
- Plaintiffs sued under the TCPA alleging unsolicited autodialed text messages; VoiceShot and Kale moved for summary judgment.
- The court found (1) VoiceShot is a common carrier telecommunication service that did not initiate the messages and had no actual notice of unlawful use, and (2) Kale’s text was not an "advertisement" or "telemarketing" and Payton gave prior express consent by providing his number for business communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VoiceShot is liable under the TCPA or is a common carrier immune from liability | VoiceShot facilitated/transmitted the messages and thus is liable; its format conversion and transmission make it an initiator | VoiceShot is a common-carrier telecommunication provider that merely transmits subscriber-originated messages and did not initiate the transmissions | VoiceShot is a common carrier; it did not initiate the messages and had no actual notice of unlawful use, so it is immune — summary judgment for VoiceShot granted |
| Whether VoiceShot’s platform qualifies as an ATDS | (Plaintiffs implied) platform functioned like an autodialer | VoiceShot argued it was not an ATDS and court need not decide because common-carrier immunity applies | Court resolved on common-carrier grounds and did not reach ATDS issue |
| Whether Kale’s text was an "advertisement" or "telemarketing" (subject to stricter TCPA rules) | The text promoted Kale’s business opportunity and allegedly encouraged purchases/transactions, so it was an advertisement/telemarketing | The text was an employment/recruitment message about an independent-contractor opportunity, not an ad selling goods/services | The message was not an "advertisement" or "telemarketing" under the TCPA — it was a recruitment/informational message |
| Whether Payton gave "prior express consent" to receive the text | Consent given in 2011 was limited to merger discussions and did not extend to unsolicited recruitment text in 2013; scope and timing negate consent | Payton provided his cellular number to Kale during business discussions and never revoked consent; consent does not automatically expire | Payton’s disclosure of his cellular number for business purposes constituted prior express consent to receive the non-telemarketing text — summary judgment for Kale as to Payton |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Scott v. Harris, 550 U.S. 372 (view facts in light most favorable to nonmovant except where record permits)
- Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s summary judgment burden)
- Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697 (court may not resolve credibility on summary judgment)
- U.S. Telecom Ass’n v. F.C.C., 295 F.3d 1326 (two-part common-carrier test: indiscriminate service and transmission of user-chosen content)
- F.C.C. v. Midwest Video Corp., 440 U.S. 689 (users transmit intelligence of their own design is a hallmark of common carriage)
- Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666 (platforms that merely enable communications are not the cause of users’ speech)