Leagle, Daniel v. Five Stars Loyalty, No. 15-cv-03546-WHO (N.D. Cal. Nov. 24, 2015)
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Judge William H. Orrick's order of November 24, 2015 in Sunil Daniel v. Five Stars Loyalty, Inc., Case No. 15-cv-03546-WHO in the Northern District of California, granting the motion to dismiss and denying without prejudice the motion to stay. Five Stars runs a consumer rewards program that works with merchants, and Daniel alleged that a text message it sent him violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, seeking to represent a national class. The court finds that the First Amended Complaint establishes Daniel asked a restaurant cashier about the program and gave the cashier his telephone number. The text he received was not an advertisement or telemarketing under the TCPA, and by providing his number he gave prior express consent. Daniel may file a second amended complaint within 25 days.
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“Leagle, Daniel v. Five Stars Loyalty, No. 15-cv-03546-WHO (N.D. Cal. Nov. 24, 2015).”
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Case 3:15-cv-03546-WHO Document 44 Filed 11/24/15 Page 1 of 11
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3
SUNIL DANIEL,
4 Case No. 15-cv-03546-WHO
Plaintiff,
5 ORDER GRANTING MOTION TO
v. DISMISS AND DENYING WITHOUT
6 PREJUDICE MOTION TO STAY
FIVE STARS LOYALTY, INC.,
7 Re: Dkt. No. 28
Defendant.
8
9 INTRODUCTION
10 Defendant Five Stars Loyalty, Inc. (“Five Stars”), a consumer rewards program that works
11 with merchants to give consumers rewards points that can then be redeemed for free products or
12 services, moves to dismiss plaintiff Sunil Daniel’s First Amended Complaint (“FAC”) that alleges
United States District Court
13 a single cause of action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
14 227. Daniel alleges that Five Stars sent him a text message that constituted a willful and knowing
15 violation of the TCPA and seeks to represent a national class of persons who received advertising
Northern District of California
16 or telemarketing texts from Five Stars. But the FAC establishes that Daniel asked a restaurant
17 cashier about the Five Stars program and provided the cashier with his telephone number. The
18 text he then received was not an advertisement or telemarketing within the meaning of the TCPA,
19 and by providing his telephone number Daniel gave his prior express consent to receive the text.
20 Five Stars’ motion to dismiss is GRANTED.1
21 BACKGROUND
22 I. FACTUAL BACKGROUND
23 I assume the truth of the allegations in the FAC for the purposes of the motion to dismiss.
24 On April 16, 2015, Daniel had lunch at a Flame Broiler restaurant in North Hollywood. First
25 Amended Complaint ¶ 19 (“FAC”) (Dkt. No. 26). “Having noticed a Five Stars sign, upon
26
27 1
In the alternative, Five Stars moves to stay the case pending resolution of the appeals in
28 Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015), and Spokeo, Inc. v. Robins, 135 S. Ct.
1892 (2015). That request is DENIED WITHOUT PREJUDICE.
Case 3:15-cv-03546-WHO Document 44 Filed 11/24/15 Page 2 of 11
1 purchase, [he] asked the cashier about Five Stars.” Id. The cashier told him that, through Five
2 Stars, customers earn points for food purchases, and that the points can then be redeemed for free
3 food. Id.
4 The cashier asked for Daniel’s telephone number, which Daniel provided orally. Id. The
5 cashier then swiped a plastic card over a scanning device and handed the card to Daniel. Id.
6 Within minutes, Daniel received a text message from Five Stars. Id. The message stated,
7 “Welcome to Five Stars, the rewards program of Flame Broiler. Reply with your email to finish
8 registering and get free pts! Txt STOP to unsubscribe.” Id.
9 Daniel states that he was not told when he provided his telephone number that a text would
10 be sent to him for any purpose, and that, “on information and belief, and based on the
11 investigation of counsel, it is not necessary for consumers to reply to [the text he received], as the
12 Five Stars card is operational upon receipt from the merchant.” Id. ¶ 20. He alleges that the “clear
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13 purpose” of the text “is to encourage the customer to return and make additional purchases by
14 expressly offering the enticement of free points . . . and to collect additional information (an email
15 address), which furthers Five Stars’ own marketing efforts, as well as the sales efforts of
Northern District of California
16 participating merchants.” Id. ¶ 21. He also alleges that “if a response is sent to the text message,
17 it is followed up with additional marketing messages . . . offering various incentives and
18 discounts.” Id.
19 II. PROCEDURAL BACKGROUND
20 On June 23, 2015, approximately two months after his visit to Flame Broiler, Daniel filed
21 this action in the Superior Court of California for the County of San Francisco. Notice of
22 Removal, Ex. A (Dkt. No. 1). His complaint alleged a single TCPA cause of action under 47
23 U.S.C. § 227(b)(1) and identified a putative class defined as “[a]ll persons throughout the United
24 States who, since October 16, 2013, received one or more text messages transmitted by Five Stars
25 on their cellular telephones, and made for a marketing or advertising purpose.” Id.
26 Five Stars removed the case to federal court on July 31, 2015, claiming subject matter
27 jurisdiction on the basis of federal question jurisdiction and the Class Action Fairness Act
28 (“CAFA”), 28 U.S.C. § 1332(d). Notice of Removal ¶ 5. After Five Stars filed an initial motion
2
Case 3:15-cv-03546-WHO Document 44 Filed 11/24/15 Page 3 of 11
1 to dismiss or, in the alternative, to stay the case, Daniel filed a notice of intent to amend as a
2 matter of course under Federal Rule of Civil Procedure 15(a)(1)(B). Dkt. Nos. 19, 23. He filed
3 the FAC on September 11, 2015. Dkt. No. 26.
4 The FAC brings the same single TCPA cause of action under 47 U.S.C. § 227(b)(1) as the
5 original complaint and identifies the same putative class. See FAC ¶¶ 26, 33-38. Pursuant to 47
6 U.S.C. § 227(b)(3), the FAC seeks statutory damages in the amount of $500 per text message
7 received, treble damages for willful and knowing violation of the TCPA, and injunctive relief. Id.
8 ¶ 38. Five Stars filed the instant motion to dismiss or, in the alternative, to stay the case on
9 October 2, 2015. Dkt. No. 28 (“Mot.”). Pursuant to Civil Local Rule 7-1(b), I determined that the
10 motion was suitable for disposition without oral argument and vacated the hearing set for
11 November 18, 2015. Dkt. No. 43.
12 LEGAL STANDARD
United States District Court
13 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain
14 statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in
15 order to “give the defendant fair notice of what the claim is and the grounds upon which it rests,”
Northern District of California
16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alterations
17 omitted).
18 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
19 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
20 2001). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable
21 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela
22 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a complaint “need not contain
23 detailed factual allegations” to survive a Rule 12(b)(6) motion, “it must plead enough facts to state
24 a claim to relief that is plausible on its face.” Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th
25 Cir. 2009) (internal quotation marks and citations omitted). A claim is facially plausible when it
26 “allows the court to draw the reasonable inference that the defendant is liable for the misconduct
27 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
28
3
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1 In considering whether a claim satisfies this standard, the court must “accept factual
2 allegations in the complaint as true and construe the pleadings in the light most favorable to the
3 nonmoving party.” Manzarek v. St. Paul Fire & Marines Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
4 2008). However, “conclusory allegations of law and unwarranted inferences are insufficient to
5 avoid a Rule 12(b)(6) dismissal.” Cousins, 568 F.3d at 1067 (internal quotation marks omitted).
6 “[I]t is within [the court’s] wheelhouse to reject, as implausible, allegations that are too
7 speculative to warrant further factual development.” Dahlia v. Rodriguez, 735 F.3d 1060, 1076
8 (9th Cir. 2013).
9 DISCUSSION
10 Congress enacted the TCPA “to protect the privacy interests of telephone subscribers.”
11 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009); Mims v. Arrow Fin.
12 Servs., LLC, 132 S. Ct. 740, 745 (2012) (in enacting the TCPA, Congress found that
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13 “[u]nrestricted telemarketing . . . can be an intrusive invasion of privacy”) (internal quotation
14 marks omitted). The TCPA provision at issue here, 28 U.S.C. § 227(b)(1)(A)(iii), makes it
15 unlawful “to make any call (other than a call made for emergency purposes or made with the prior
Northern District of California
16 express consent of the called party) using any automatic telephone dialing system . . . to any
17 telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).2
18 Under the current version of the implementing regulation, which took effect on October
19 16, 2013, the level of prior consent required to remove a call from the scope of section
20 227(b)(1)(A)(iii) depends on the character of the call. Where the call “includes or introduces an
21 advertisement or constitutes telemarketing,” the called party must have given his “prior express
22 written consent.” 47 C.F.R. § 64.1200(a)(2) (emphasis added). With respect to other calls – i.e.,
23 calls that do not include or introduce an advertisement or constitute telemarketing – only “prior
24 express consent” is required. 47 C.F.R. § 64.1200(a)(1). In other words, texts that “‘includ[e] or
25 introduc[e] an advertisement or constitut[e] telemarketing’ . . . may only be sent with the
26 recipient’s prior express written consent, whereas other texts require only prior express consent to
27
2
28 The Ninth Circuit has held that a text message qualifies as a “call” within the meaning of the
TCPA. See Satterfield, 569 F.3d at 952-54.
4
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1 be legal.” Reardon v. Uber Technologies, Inc., No. 14-cv-05678-JST, 2015 WL 4451209, at *3
2 (N.D. Cal. July 19, 2015) (emphasis in original).
3 The same implementing regulation defines “advertisement” as “any material advertising
4 the commercial availability or quality of any property, goods, or services.” 47 C.F.R. §
5 64.1200(f)(1). “Telemarketing” is defined as “the initiation of a telephone call or message for the
6 purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,
7 which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12).
8 The parties do not dispute this basic framework. See, e.g., FAC ¶ 36; Mot. at 9-10; Opp. at
9 18 n.15 (Dkt. No. 40) (“Generally speaking, plaintiff does not does not contest that a more relaxed
10 standard [of prior consent] applies for non-advertisements and non-telemarketing.”). Nor do they
11 dispute that there is no indication in the FAC that Daniel gave his prior express written consent to
12 receive the Five Stars text message. Their dispute turns on (1) whether the text, as alleged in the
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13 FAC, was a non-advertisement and non-telemarketing message, and (2) if so, whether Daniel has
14 alleged that he gave his prior express consent to receive it.3 I address each issue in turn.
15 I. ADVERTISEMENT OR TELEMARKETING
Northern District of California
16 Five Stars argues that the text message Daniel received merely “provided information
17 about how to complete registration per [his] request and does not constitute an advertisement or
18 telemarketing.” Reply at 2 (Dkt. No. 41). In support of this argument, Five Stars relies
19 principally on Aderhold v. Car2go N.A., LLC, No. 13-cv-00489, 2014 WL 794802 (W.D. Wash.
20 Feb. 27, 2014), which held that a text message similar to the one Daniel received did not constitute
21 telemarketing under the TCPA. See id. at *9. The text at issue in Car2Go stated in whole, “Please
22 enter your car2go activation code 145858 into the emailed link. We look forward to welcoming
23 you to car2go.” Id. *1. The plaintiff received the text within seconds of submitting an online
24 registration form to car2go (a car-sharing service operating in Seattle, Washington and several
25 other cities). Id. As part of the online registration form, the plaintiff entered his telephone number
26
27 3
Five Stars also moves to dismiss on the ground that Daniels has not plausibly alleged that Five
28 Stars used an “automatic telephone dialing system” to send the text. See, e.g., Mot. at 7-9.
Because I resolve the motion on the grounds stated in this Order, I do not address that argument.
5
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1 and email address among other personal identifying information. Id. In dismissing the plaintiff’s
2 section 227(b)(1)(A)(iii) claim, the court rejected the argument that the text was telemarketing
3 because it directed the plaintiff to place the activation code into the emailed link, which, in turn,
4 connected to the car2go website, which, in turn, included marketing for car2go. Id. The court
5 found that “[t]here is no indication that the text was intended for anything other than the limited
6 purpose stated in its two sentences: to permit [plaintiff] to complete [his] registration . . . It is
7 manifestly insufficient that [plaintiff] could, after choices of his own making, divert himself from
8 the registration process to [view] car2go marketing.” Id. at *9.
9 Car2go was decided under a prior version of 47 C.F.R. § 64.1200, and the opinion does
10 not specifically refer to the regulation’s definition of “telemarketing.” Nevertheless, given that the
11 applicable version of the regulation defined “telemarketing” in exactly the same way as the current
12 version, the case is persuasive here, and I agree with its holding: a text sent solely for the purpose
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13 of allowing the recipient to complete a registration process that he or she initiated shortly before
14 receiving the text is not telemarketing within the meaning of 47 C.F.R. § 64.1200(f)(12).4
15 Daniel makes two counterarguments, neither of which is convincing. First, he emphasizes
Northern District of California
16 that “[w]hether a message qualifies as an advertisement or telemarketing cannot be determined
17 from its face alone;” rather, “the FCC requires courts to look at the context in which the message
18 is sent . . . to figure out what its purpose is.” Opp. at 18. He points to Chesbro v. Best Buy Stores,
19 L.P., 705 F.3d 913 (9th Cir. 2012), in which the Ninth Circuit indicated that the characterization of
20 a call for the purposes of the TCPA should be “approach[ed] with a measure of common sense.”
21 Id. at 918. According to Daniel, considering the context in which his text was sent and applying
22 common sense, “a reasonable inference is that the message [was] designed to encourage future
23 purchases at Flame Broiler.” Opp. at 20.
24
25 4
Daniel focuses his briefing on whether the text he received constituted “telemarketing” under 47
26 C.F.R. § 64.1200(f)(12), and it is unclear whether he means to allege that the text also included or
introduced an “advertisement” within the meaning of 47 C.F.R. § 64.1200(f)(1). To the extent
27 that he does base his TCPA claim on this theory, the claim fails. I do not see how the text could
be reasonably characterized as including or introducing “material advertising the commercial
28 availability or quality of any property, goods, or services,” 47 C.F.R. § 64.1200(f)(1), and Daniel
does not even attempt to explain how it could be.
6
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1 Context and common sense do not help Daniel: both cut squarely against his position. The
2 context in which the text message was sent – i.e., minutes after Daniel asked the Flame Broiler
3 cashier about Five Stars and gave the cashier his telephone number – merely highlights the text’s
4 purpose of enabling Daniel to complete the registration process that he had initiated minutes
5 before. Likewise, common sense points to the conclusion that Daniel received a confirmatory text
6 as part of the process of registering for Five Stars, not a telemarketing message. To the extent that
7 it could be reasonably inferred based on context or otherwise that the text’s purpose was also to
8 “encourage future purchases at Flame Broiler,” that purpose is simply too attenuated to make the
9 text telemarketing within the meaning of 47 C.F.R. § 64.1200(f)(12). Certainly, the text was
10 designed to allow Daniel to complete the registration process, which could result in an increase in
11 the chances of Daniel making future purchases at Flame Broiler or other participants in the Five
12 Stars program. But Daniel cites no authority indicating that this degree of connection between
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13 communication and purchase is sufficient to transform a text of the sort he received into a
14 telemarketing message.
15 Daniel relies heavily on Chesbro for his context and common sense argument, but the facts
Northern District of California
16 of that case are substantially different from those at issue here. There, the plaintiff purchased a
17 computer from Best Buy and signed up for a payment plan, in the process providing his telephone
18 number. 705 F.3d at 915. The parties disputed whether at the same time the plaintiff also enrolled
19 in the “Reward Zone Program,” which allowed customers to earn coupons that could be applied to
20 future purchases at Best Buy. Id. at 915-16. Over the course of the next approximately one year,
21 the plaintiff received several automated calls from Best Buy regarding the Reward Zone Program,
22 despite his repeated requests that he not be called. Id. at 916, 918. One of the calls consisted of
23 the following script:
24 Hello, this is Andrea from Best Buy Reward Zone calling for
(Recipient's first and last name) to remind you that your Reward
25 Certificates are about to expire. (Certificate amount) dollars in
Reward Certificates were mailed to you on (Mail date) and they
26 will expire if not used by (Expiration Date). If you do not have
your reward certificates, you can re-print them online at
27 myrewardzone.com. Thank you for shopping at Best Buy.
28
7
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1 Id. at 916. The Ninth Circuit “approach[ed] the problem with a measure of common sense” and
2 concluded that the automated calls constituted telemarketing, highlighting that the calls
3 urged the listener to “redeem” his Reward Zone points, directed
him to a website where he could further engage with the [Reward
4 Zone Program], and thanked him for ‘shopping at Best Buy.’
Redeeming Reward Zone points required going to a Best Buy store
5 and making further purchases of Best Buy’s goods. There was no
other use for the Reward Zone points.
6 Id. at 918. The Ninth Circuit recognized that the calls did not explicitly reference any specific
7 product or service but found that their “implication is clear from the context,” and that “any
8 additional information provided in the calls does not inoculate them” against liability under the
9 TCPA. Id.
10 In contrast with the plaintiff in Chesbro, Daniel received a single text message in direct
11 and immediate response to his inquiry regarding the Five Stars program and to his provision of his
12 telephone number. The message he received did not urge him to “redeem” Five Stars points, did
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13 not direct him to a location where points could be redeemed or where more information about the
14 Five Stars program could be obtained, and did not reference shopping or purchasing. Apart from
15 the presence of rewards points and the absence of any express reference to a specific product or
Northern District of California
16 service, Daniel does not identify any similarities between Chesbro and this case. While the
17 common sense inference in Chesbro was that the calls constituted telemarketing, that is not the
18 case here.
19 Daniel’s second argument focuses on the mention of “free pts” in the second sentence of
20 the text he received. See Opp. at 18. He argues that because these “free pts” are “obviously meant
21 to be redeemed” at Flame Broiler, the text “on its face” encourages the purchase of a product. Id.
22 This argument fails because it runs smack into Daniel’s first argument, i.e., that a message must be
23 considered in context, not in a vacuum. While in certain circumstances a similar reference to
24 rewards points might be enough to justify characterizing a message as an advertisement or
25 telemarketing, it is not enough here: the message Daniel received did not urge him, either
26 expressly or impliedly, to redeem any Five Stars points, nor did it direct him to a location where
27 points could be redeemed or where more information about the Five Stars program could be
28
8
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1 obtained. Rather, as alleged in the FAC, the reference to “free pts” could be reasonably
2 understood to mean either (1) that Daniel would earn points specifically by replying with his email
3 and/or by completing the registration process, or (2) that joining the Five Stars program would as a
4 general matter enable him to earn points. Under either of these readings, the mention of “free pts”
5 is merely a brief reference to a basic consequence of Daniel replying with his email or of
6 registering for and/or participating in the Five Stars program. Given the context of the message,
7 that brief reference does not rise to the level of encouraging the purchase of goods or services.
8 Nor does it threaten the sort of “intrusive invasion of privacy” that Congress contemplated in
9 enacting the TCPA. Mims, 132 S. Ct. at 745. The text Daniel received did not include or
10 introduce an advertisement and did not constitute telemarketing.5
11 II. PRIOR EXPRESS CONSENT
12 Because the text Daniel received did not include or introduce an advertisement or
United States District Court
13 constitute telemarketing, it “require[d] only prior express consent to be legal.” Reardon, 2015 WL
14 4451209, at *3. I agree with Five Stars that the allegations in the FAC establish that Daniel gave
15 his prior express consent to receive the text.
Northern District of California
16 While there is a minority of courts that have found otherwise, the great weight of authority
17 holds that an individual who knowingly provides her telephone number to another party without
18 limiting instructions has giving her prior express consent to receive calls at that number from that
19 party. In its 1992 order interpreting the TCPA, the FCC observed that
20 persons who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the number
21 which they have given, absent instructions to the contrary. Hence,
telemarketers will not violate our rules by calling a number which
22 was provided as one at which the called party wishes to be
reached.
23
24
25 5
Although Daniel alleges in the FAC that “it is not necessary for consumers to reply to [the text
26 he received], as the Five Stars card is operational upon receipt from the merchant,” and that “if a
response is sent to the text message, it is followed up with additional marketing messages . . .
27 offering various incentives and discounts,” FAC ¶ 20, he does not explain either in the FAC or in
his opposition brief how these allegations help his case. On their face, they do not. In light of the
28 absence of any explanation of their relevance, they do not change the advertisement/telemarketing
analysis set out above.
9
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1 7 F.C.C. Rcd. 8752 ¶ 31 (1992) (internal footnotes omitted).6, 7 In line with this order, “the vast
2 majority of cases to address the issue have held that a telephone customer who provides her
3 number to another party consents to receive calls or texts from that party.” Reardon, 2015 WL
4 4451209, at *6 (collecting cases); see also Baird v. Sabre Inc., 995 F. Supp. 2d 1100, 1102-03
5 (C.D. Cal. 2014) (“Myriad federal district courts have relied on the [FCC’s 1992 order] to
6 conclude that plaintiffs who provided a business with their telephone number and then received a
7 text message from the business had no claim under the [TCPA].”) (collecting cases); Roberts,
8 2015 WL 6524840, at *1 (holding that, under the FCC’s 1992 order, the plaintiff “expressly
9 consented to text messages from [defendant] when he provided [defendant] his cell phone
10 number”); but see, e.g., In re Jiffy Lube Int’l, Inc., Text Spam Litig., 847 F. Supp. 2d 1253, 1258
11 (S.D. Cal. 2012).
12 Further, in its 2015 order interpreting the TCPA, the FCC again explained that prior
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13 express consent exists where the recipient provides her telephone number without limiting
14 instructions. It stated: “For non-telemarketing and non-advertising calls, express consent can be
15 demonstrated by the called party giving prior express oral or written consent or, in the absence of
Northern District of California
16 instructions to the contrary, by giving his or her wireless number to the person initiating the
17 autodialed or prerecorded call.” 30 F.C.C. Rcd. 7961 ¶ 52 (2015) (internal footnotes omitted).
18
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22 6
Under the Hobbs Act, I am bound by an FCC final order unless it is invalidated by a court of
23 appeals. See 28 U.S.C. § 2342(1); see also US W. Commc’ns, Inc. v. Hamilton, 224 F.3d 1049,
1054 (9th Cir. 2000); Leckler v. Cashcall, Inc., No. 07-cv-04002-SI, 2008 WL 5000528, at *2-3
24 (N.D. Cal. Nov. 21, 2008). The FCC’s 1992 order, as well as its 2015 order discussed below, are
final orders within the meaning of the Hobbs Act. See Reardon, 2015 WL 4451209, at *6;
25 Roberts v. Paypal, Inc., No. 13-16304, 2015 WL 6524840, at *1 (9th Cir. Oct. 29, 2015); see also
US W. Commc’ns, 224 F.3d at 1054 (9th Cir. 2000) (“[A]gency orders are ‘final orders’ for the
26 purposes of the Hobbs Act if they impose an obligation, deny a right, or fix some legal
relationship as a consummation of the administrative process”) (some internal quotation marks
27 omitted).
7
28 Five Stars’ unopposed request for judicial notice of the FCC’s 1992 and 2015 orders and two
other orders issued by the FCC, Dkt. No. 30, is GRANTED.
10
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1 Daniel cites no authority to the contrary (although, as noted above, there is some), and,
2 indeed, offers no argument whatsoever in his opposition brief regarding prior express consent.8
3 Five Stars has shown that, as alleged in the FAC, the text it sent to Daniel was a non-
4 advertisement and non-telemarketing message sent with the prior express consent of the recipient.
5 Accordingly, the TCPA cause of action must be dismissed.
6 CONCLUSION
7 Five Stars’ motion to dismiss is GRANTED. Daniel shall file his second amended
8 complaint, if any, within 25 days of the date of this Order. Five Stars’ motion to stay is DENIED
9 WITHOUT PREJUDICE to resubmission upon the filing of Daniel’s second amended complaint.
10 IT IS SO ORDERED.
11 Dated: November 24, 2015
12 ______________________________________
United States District Court
WILLIAM H. ORRICK
13 United States District Judge
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Northern District of California
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26 Daniel does dispute Five Stars’ alternative arguments that it possessed a “good faith belief” of
prior express consent, and that its alleged misconduct is shielded from liability under the
27 exception, set out in the FCC’s 2015 order, for “a one-time text sent in response to a consumer’s
request for information.” 30 F.C.C. Rcd. 7961 ¶ 106. However, because I find that Daniel’s
28 allegations establish that he gave his prior express consent to receive the text, I do not address
those arguments.
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