Court Finds Text Message Offering Link to Dinner “Specials” Was Not Telemarketing Because the Customer Already Had a Dinner Reservation

When it comes to telemarketing, context is everything.

Imagine sitting at home and receiving a text message from a restaurant inviting you to view their nightly dinner specials. That’s pretty clearly telemarketing, right? Now, imagine that you first called the restaurant to make a dinner reservation for that evening and also provided your cell phone number. The restaurant then sends you the exact same text message. What result?

In a new decision from the Eastern District of California, Judge John A. Mendez held that such text messages are not telemarketing and are expressly permitted by the diner when the diner provides his or her phone number to the restaurant in connection with the dinner reservation.  The case is Mackinnon v. Hof’s Hut Rests., Inc., No. 2:17-cv-01456-JAM-DB, 2017 U.S. Dist. LEXIS 195444 (E.D. Cal. Nov. 28, 2017) and it should be closely read by anyone using a text campaign in connection with a consumer-initiated request for information.

By way of background, the TCPA bars automated telemarketing text messages without the express written consent of the called party. If the texts were telemarketing in nature, therefore, the restaurant would be in a lot of trouble because it did not have Plaintiff’s written consent to send the texts. The Court bailed the restaurant out, however, concluding that despite the link to dinner specials, the purpose of the message was merely to facilitate the dinner “transaction” that the diner had himself commenced.  Transactional messages require a much lower level of consent—merely providing a number in connection with the “transaction” is sufficient to authorize the message. In the Court’s mind, dinner is a “transaction” and making a reservation commenced it. The restaurant merely “facilitated Plaintiff’s dining transaction by allowing him to view specials on his cellphone before sitting down for dinner.”  So the text was not telemarketing and no written consent was required.

Let me know next time you’re in town and maybe we can transact dinner together.

Eric Troutman

Eric Troutman

Eric is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues.

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