Court Finds Website Owner Did Not Send Text Messages Initiated by its Users and thus Did Not Violate the TCPA

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Matthew T. Houston

In a recent decision, the U.S. District Court for the Northern District of Illinois found that the host of an automobile website did not violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by providing its users a platform to send automated text messages regarding car listings.  In Serban v. CarGurus, Inc., Case No. 1:16-cv-02531 (N.D. Ill. Mar. 12, 2018), a user of the defendant’s website mistyped her telephone number when attempting to send herself a car listing.  In doing so, the user performed a multi-step process—including selecting the “Send to Phone” option, entering the telephone number, and clicking a “Send” button—to generate a text message automatically created by CarGurus based on the car selected.  As a result of the mistyped telephone number, the text message was transmitted to the plaintiff rather than the user.

In concluding that CarGurus did not violate the TCPA, the Court reasoned that the account user, rather than CarGurus, “initiated” and thus sent the text message. The account user inputted the telephone number to receive the message, selected the specific listing to send to the number, and actively completed the steps necessary to send the message. Despite providing the template for the message and owning the shortcode used to send the text messages through a third-party message aggregator, CarGurus merely executed the user’s request as an intermediary to facilitate the message. In light of the undisputed facts regarding the account user’s involvement, the Court granted summary judgment in favor of CarGurus.