In Frank v. Cannabis & Glass, LLC, No. 2:19-cv-00250-SAB (E.D. Wash. Oct. 1, 2019), the federal court for the Eastern District of Washington held that a minor role in a causal chain was not sufficient to “make” a call for purposes of liability under the Telephone Consumer Protection Act.

This case arose after Roberta Frank visited the cannabis retail store of Cannabis & Glass, LLC; NXNW Retail, LLC; and Tate Kapple (the “Retail Defendants”). At checkout, Frank gave the sales associate her cell phone number in order to participate in the store’s loyalty program. When she gave her cell phone number, she was not informed that she would be sent text messages notifying her of sales and discounts. Instead, the store associate represented that Frank’s cell phone number and first name were required before she could participate in that store’s loyalty program. The next day, Frank began receiving text messages from the Retail Defendants using Springbig’s SMS short codes.

Frank sued the Retail Defendants and Springbig for violation of the TCPA based on sending her unauthorized advertisements via text message. Springbig moved to dismiss because, while it does provide text message marketing for cannabis dispensaries, it does not “make” the calls (or send the texts) within the definition of the TCPA. The Court agreed.

Under the TCPA, a company cannot “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice …. to any telephone number assigned to a …  cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). In Frank, the Court began by recognizing that the Ninth Circuit Court of Appeals has held that a text message is a “call” under the TCPA. Slip Op. 3 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951-52 (9th Cir. 2009)).

However, the TCPA does not define what it means to “make” a call. Accordingly, the Court looked to the Federal Communications Commission, which Congress authorized to make rules and regulations to implement the TCPA. Under FCC guidance, common carriers cannot be liable under the TCPA, unless the carrier “was so involved in placing the call as to be deemed to have initiated it.” Slip Op. 4 (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7980 (2015)). This equally applies to applications: “application providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls.” Id.

In its opinion, the Court held that Frank had not sufficiently alleged that Springbig “made” the calls. The Court noted that Frank’s complaint “does not provide any allegations that Defendant Springbig took steps physically necessary to place the call or that it was so involved in the placing of the call as to be deemed to have initiated it,” nor are there any “allegations that Defendant Springbig exercised any discernible involvement in deciding whether, when, or to whom the text message is sent, or what the text message said.” And, baldly claiming that “Defendant Springbig ‘made’ or ‘initiated’ the call is not sufficient to allege a TCPA claim against Defendant Springbig.” Accordingly, the Court concluded that, while “Defendant Springbig had some role, albeit a minor one, in the causal chain that resulted in the sending of the text, . . . this is not enough to survive a 12(b)(6) motion.”

The Court’s reasoning in this case is significant because, relying on FCC guidance, it held that a minor role in a causal chain leading to text messages was not sufficient for liability under the TCPA.

Our Cannabis Practice provides advice on issues related to applicable state law. Cannabis remains an illegal controlled substance under federal law.