iTCPAWorld is still full of folks making bad arguments. Mostly they’re on the Plaintiff’s side, but every once in a while..
Submitted for your approval—the Defendant who argues that text messages offering employment to folks they found online are not subject to the TCPA. At all.
Where does this argument even come from you ask? Well there are a good number of cases holding that messages offering something—employment, to buy a car, etc.—are not telemarketing. They do not advertise the availability of a good or service. They advertise the willingness of the caller to buy or provide something of value from or to the call recipient. So such messages do not require express written consent, but they still require good ole fashioned and easy-to-get regular express consent.
Or do they?
Well the Defendant in Gerrard v. Acara Solutions, 18-CV-1041V(F), 2019 U.S. Dist. LEXIS 10803 (W.D.N.Y. June 27, 2019) argued that they do not because they are not telemarketing and the FCC has exempted non-telemarketing commercial calls from the TCPA. That’s a great argument, except its entirely inaccurate as applied to cell phones. Although the TCPA was passed in large measure to prevent calls to landlines, the statute has been ironically interpreted to allow non-telemarketing calls to landlines without any level of consent. But as to cell phones, however, all calls require some level of consent—including non-telemarketing calls.
The Gerrard court spent more time than seemingly necessary walking through all the pertinent case law before coming to the rather obvious conclusion—texts offering employment, like all other texts to cell phones using an ATDS, require express consent. Just not the written kind.
Speaking of ATDS usage, Gerrard also touches on that subject and, in a convoluted sort of way, concludes that allegations of impersonal messaging and high volume is sufficient to allege ATDS usage at the pleadings stage. The case does not meaningfully discuss functionality so it does not earn a place on the rolling ATDS review.
