A federal court in Florida has recently ruled that a Craigslist advertisement listing a phone number established consent to be contacted and, therefore, an SMS text message from an online car retailer did not violate the Telephone Consumer Protection Act.
The matter involves a classified ad for the sale of a vehicle on Craigslist. The seller posted the following: “Call [phone number] for more info … do NOT contact me with unsolicited services or offers.” An online car retailer subsequently sent a text to the seller, stating: “Hi … I saw you listed your Prius online & can make an offer but need you to fill out a few more details (takes 4 mins)” with a link to the retailers online appraisal tool.
The seller filed suit, alleging that the retailer violated the TCPA. The retailer moved for summary judgment on the basis that the text message was sent in direct response to the online classified ad, and was therefore not telemarketing. The defendant also argued that the plaintiff expressly consented to receive the text by including his cell phone number in the ad and directing interested buyers to contact him for more information.
Defendant’s motion was granted.
The court held that the text message did not constituted “telemarketing” pursuant to the TCPA because the text message plainly indicated that the retailer sought to purchase the advertised vehicle. The retailer simply required additional information regarding the car before it made an offer.
The court stated, “[i]t is clear that the purpose of the single text message … was to direct [the seller] to a page on its website for him to enter information that would facilitate [the retailer’s] ability to purchase his car. While it is apparent that visiting [the retailer’s] website ‘could result in the increase in the chances’ of [the seller] purchasing a used car sold by [the retailer], [the seller] ‘cites no authority indicating that this degree of connection between communication and purchase is sufficient to transform a text of the sort he received into a telemarketing message.’”
Nor was the court persuaded that the text had a dual purpose message. It refused to permit the plaintiff to rely on the retailer general business model – which includes the sale of used cars – to transform the objective purpose of the message, which was invited by the seller himself.
“Based on the context in which it was sent, there is simply no basis for construing [the retailer’s] message as the type of unsolicited communication referenced by the dual purpose rule,” the court stated.
“Communications that merely include collateral opportunities to purchase something from the caller do not constitute dual purpose messages where the opportunity to purchase something from the caller is too attenuated from the purpose of the initial communication.”
The court found that the seller provided express consent to be contacted and did not include limitations. “The Court finds that by including his phone number in an online advertisement that he knew could be accessed by anyone with an Internet connection and directing interested buyers to contact him at the provided number for ‘more info,’ [the seller] expressly consented to being contacted by [the retailer] at that number to facilitate the purchase of his advertised vehicle.” “Despite the seller’s] post hoc representations that he did not want to be contacted by dealerships or with automated messages, there are no such limitations included in [the seller’s] actual Craigslist advertisement.”
Caveat: If a person lists a telephone number on the Internet in an automobile advertisement, that person has not consented to receive automated calls for another purpose. “Here, by including his cell phone number in his advertisement with instructions to contact him for more information, [the seller] provided express consent for [the retailer] to contact him for that purpose,” the court held.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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