Agoda Company Pte. Ltd., an international travel service provider based in Singapore, secured a summary judgment win on the affirmative defense of consent after a district court ruled the text messages it sent to a customer did not violate the Telephone Consumer Protection Act. 

After booking with Agoda to reserve hotel rooms on four separate occasions, plaintiff An Phan received text messages saying, “Good news! Your Agoda booking [number] is confirmed,” followed by a link directing Phan to where he could manage his reservation.  Based on these messages, Phan filed suit in the United States District Court for the Northern District of California, alleging that Agoda violated the TCPA by sending these texts because they were marketing or promotional in nature by inviting him to download Agoda’s booking app. 

Agoda filed a motion arguing that the Court should grant summary judgment on Phan’s TCPA claim on several grounds, including that Phan provided consent under the TCPA because the text messages he received did not contain advertising.  Judge Beth Labson Freeman ruled that because Phan agreed to receive the messages, and because the messages did not contain advertising, Agoda should be granted summary judgment and the TCPA claim dismissed. 

The Court found that the “context and the content of the messages dictate this result.”  As for context, the text messages were sent as part of an ongoing business transaction between Agoda and Phan. He could cancel the reservation or otherwise modify it through the Agoda app, and thus the transactional nature of Phan’s relationship with Agoda continued until Phan completed his travel. Additionally, the content of the messages directly related to confirming the booking and encouraging Phan to manage his reservation through the app 

Ruling that “the context and content of the messages demonstrate that the purpose of the messages was not to advertise or telemarket, but instead was directly cabined to facilitating and completing an existing transaction,” the Court found that the messages were neither advertising nor telemarketing as defined by the TCPA.  Thus, Agoda only needed Phan’s express consent prior to sending messages.  Because Phan voluntarily provided his phone number when he agreed to Agoda’s Terms of Use and Privacy Policy, there is no dispute that he provided such consent.  “Based on the undisputed facts in the record,” ruled the Court, “the messages were neither advertising nor telemarketing and Agoda received prior express consent from Phan.” 

Phan has appealed the decision to the Ninth Circuit Court of Appeals, and his opening brief is due on April 15.