Karen Kidd May 11, 2016, 4:18pm

CHICAGO –  A text message sent to a real estate agent by a Chicago real estate brokerage seeking recruits didn't qualify as telemarketing or an advertisement under the Federal Communications Commission's definitions, a Chicago federal judge said earlier this year. And since the agent voluntarily provided his mobile phone number to the brokerage in emails several years earlier, the agent didn't have legal leeway to claim he didn't provide his consent, either. 

Simply put, the FCC classifies advertising as a message about the commercial availability or quality of any property, goods, or services, said Christine M. Reilly, a litigation partner in the Los Angeles office of the firm of Manatt, Phelps & Phillips, and co-chair of that firm's practice group centering on defense against class actions and lawsuits under the federal Telephone Consumer Protection Act.


"It does suggest that if you provide your cell phone number to a company, then you can reasonably expect to receive messages from that company and that can include messages about recruiting," Reilly said.

The case, docketed in the U.S. District Court for the Northern District of Illinois as Case No. 1:13-cv-08002 Payton v. Kale Realty LLC , centered on a recruiting text message sent two years after the recipient provided his cell phone number. On Nov. 7, 2013, Payton filed suit against Kale Realty, a real estate brokerage firm that operates in Chicago. According to court documents, Kale Realty's message read: “Kale Realty named 2013 Top 100 Places to Work by Tribune — We pay 100% on sales — reply or visit http://joinkale.com to learn more! Rply 69 to unsubscribe.”

That text message also arrived about two years after negotiations failed for a potential merger of Payton's and Kale's businesses. During those negotiations, Payton and Kale Realty exchanged many emails, at least three of which included Payton's cell phone number in his email signature box.

The text message two years later amounted to an unsolicited advertisement, a violation of the TCPA, Payton's lawsuit alleged.

In April 2014, Payton amended his complaint to add VoiceShot as a defendant, claiming Kale Realty used VoiceShot to send unsolicited advertisements to prospective customer cell phones, including Payton's. VoiceShot, a Delaware limited liability company that operates principally in Michigan, though their servers are located in servers are located in California and Texas, allows users to send mass text messages or other communications for a fee.

This past February, Lefkow granted VoiceShot's motion for summary judgment in the court's ruling.

VoiceShot argued the text message Payton received was not an “advertisement” or “telemarketing” as defined by the FCC and that Payton's prior emails with his cell phone number granted his express consent to receive text messages at that number. Under FCC regulations, non-advertising text messages are allowed if the recipient provides only prior consent, even verbal consent. 

Lefkow agreed, citing Title II of the Communications Act and backing VoiceShot's assertion that the text message Payton received was neither an advertisement nor telemarketing.

"Regardless of plaintiffs' self-defeating argument, the undisputed facts establish that VoiceShot provides telecommunication services rather than information services," Lefkow said in the court's Feb. 22 ruling. "While plaintiff is correct that VoiceShot's services include data storage to allow users to store contact lists and past messages on VoiceShot's website, this does not automatically convert the telecommunications service to an information service."

The court also ruled that Payton had provided prior express to receive such text messages because he voluntarily provided his mobile number in his email signature two years prior and never rescinded that consent.

"In fact, the text message provided a way for the plaintiff to unsubscribe," Reilly said. "All he had to do was what the text message said, to 'Rply 69". Instead, he filed a lawsuit."

Under the TCPA, express consent has no expiration date and is considered effective until revoked.

That has bearing beyond text messages and cell phones, Reilly said.

"If you're going to be voluntarily including your mobile phone number on your business cards and then you hand out those business cards, you are consenting to receive text messages and calls at that mobile phone number," she said. "And that can include text messages and informational messages."

The message is quite clear for any consumer who doesn't want to receive those text messages, Reilly said.

"It's very simple," she said. "If you don't want to be contacted on your mobile phone number, don't provide your mobile phone number."

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Morrison and Foerster LLP
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Manatt Phelps & Phillips
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Chicago, IL 60603

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