In working with platform providers, we often confront the threshold question of “who steers?” Platform providers are understandably proud of their inventions and want to ensure that their platforms are used responsibly and thoughtfully. But, to keep the analogy going, I always caution that the more fingers you have on the wheel, the more likely you, my dear platform provider, will get the TCPA ticket. To make the point, a federal trial court in Oakland, California has now joined the emerging body of case law dismissing TCPA claims against SMS-delivery platform providers when they do not have a sufficient level of involvement required for TCPA liability.
In this most recent case, we have a plaintiff of two minds: he wanted to hold both Yelp, which offers a reservation-management platform that restaurants can use, and the restaurant (here, Buffalo Wild Wings) that used Yelp’s platform to send him messages jointly liable for several text messages he received after he gave two Buffalo Wild Wings restaurants his mobile phone number to be informed about the status of his wait for a table. After he gave his mobile number to the restaurant hostess, at one BWW restaurant he received a message informing him that he could stay apprised of his wait via Yelp’s Nowait app. (Spoiler alert for those of you who—gasp—just grab a seat at the bar: the app doesn’t eliminate the wait. You just watch the wait happen on your phone, which, if nothing else, makes it less real.) At the other BWW restaurant, the hyperlink in the text message invited him to download Yelp’s flagship app.
In trying to hit both targets, the court held that the plaintiff’s TCPA claims against Yelp fail as a matter of law. Applying the FCC’s TextMe and YouMail cases, the court ruled that because the restaurants made the key decisions—whether, to whom, and when to send the messages—Yelp cannot be held liable under the TCPA for providing the platform that enabled BWW to keep this consumer apprised of the status of his wait (even if the links invited him to download apps that could generate revenue for Yelp).
As the court explained, the restaurant made the key decisions for purposes of TCPA liability:
- plaintiff’s allegations indicate that the app users, i.e., the Buffalo Wild Wings restaurants, initiated the text messages because they, and not Yelp, decided whether, when, and to whom to send the text messages. Specifically, the complaint shows that the restaurants plaintiff visited, not Yelp, decided whether to send a text message to plaintiff;
- The complaint also establishes that the restaurants decided when to send the text messages to plaintiff because he received them “shortly” after the hostess took down his number and when his “table was ready.” That is, the complaint indicates that the timing of the text messages was linked to information in the restaurants’, not Yelp’s, possession; and
- the complaint shows that the restaurants decided to whom to send the text messages, that is, to patrons who provided their cellular phone numbers upon arriving at the restaurant.
Because the plaintiff’s allegations failed to show that Yelp was an active participant in developing the messages that were ultimately sent, the plaintiff’s TCPA claims against Yelp were dismissed. (The claims against Buffalo Wild Wings, which is predictably arguing that this plaintiff consented to receive those messages, are being transferred to a different court for final resolution.)