No matter what P.T. Barnum might have said, some publicity is bad publicity.

In the case of text message provider Vibe, a decision to (allegedly) advertise that it has sent over 4 billion text messages has lead at least one court to conclude that it is probably an ATDS platform subject to the TCPA.

Here’s the story:

In Rotberg v. Jos. A. Bank Clothiers, Inc. Case No. 16-cv-2962, 2018 WL 5787480 (S.D.N.Y. Nov. 5, 2018), the Court deemed the Complaint’s allegations sufficient to establish the “plausible” use of an ATDS, because:

• Defendants sent him a set of terms and conditions in which they requested Rotberg agree to receive autodialed messages

• Defendant used a short code to send the messages

• advertising material from the text message provider (Vibe) that it had delivered 4 billion messages previously

The court found that “[t]hese indicators of automation and mass marketing contribute to the plausibility of Plaintiff’s allegations regarding Defendants’ use of an ATDS.”

Notably, the Court took a page from the Book of King and avoided identifying exactly what functionalities make a text message platform an ATDS. It was enough for the Rotberg court that the Defendant was sending a bunch of messages and that Vibe freely advertised it had the ability to send a lot of text messages.

Notably Rotberg’s analysis departs completely from Gaza v. Auto Glass America, LLC, Case No. 8:17-cv-01811, Doc. No. 42 (M.D. Fl. Nov. 2, 2018)–which focused solely on how the text message campaign was created. Then again Gaza was decided at the summary judgment phase and Rotberg is a pleadings stage case so the divergent analysis may be a product of a very divergent record.

Frustratingly, however, Rotberg does not address what functionalities are required of an ATDS–other than the functionality of blasting a lot of texts apparently. We’ll keep an eye on this one.

On the plus side, the Rotberg court rejected Plaintiff’s formulaic recitation of the text he received as “marketing.” As it was clear from the Complaint that Plaintiff had voluntarily supplied his number, the failure to allege facts proving that the text was marketing in nature was fatal to his claim– written consent is only needed for marketing messages under the TCPA and informational messages can be sent to anyone who voluntarily supplies the number to the texter.

Indeed the Court hands out a great one-liner suggesting that texts designed to get written consent do not require written consent, but wield it at your own risk:

“But a caller seeking out a consumer’s express written consent to send subsequent
telemarketing or advertising texts is not as a matter of law already engaged in telemarketing.”

Rotberg at *9.