Light at the End of the TCPA Tunnel for Subway?

Sometimes, an arguably innocent bystander can find a potential path to escape the tunnel of TCPA liability. To that end, in Warciak v. Subway Restaurants, Inc., 1-16-cv-08694, 2019 U.S. Dist. Lexis 32357 (February 28, 2019), the Federal District Court in Illinois dismissed a TCPA class action based on a wireless carrier T-Mobile’s texting of an offering to its wireless customers for a free Subway sandwich. A unique escape route was Subway’s (and the court’s) invocation of the TCPA’s “wireless carrier” exemption to provide a potential light at the end of the TCPA tunnel.

T-Mobile sent a promotional text to customers advertising a free sub from Subway, as part of the carrier’s service offering that provides free items to its customers each Tuesday. An irate T-Mobile customer then brought a class action against Subway, alleging that Subway’s conduct violated the TCPA.

As part of a three-pronged attack, Subway successfully raised defects in the allegations raised in the complaint concerning the company’s potential direct and vicarious liability (via common law agency, apparent authority or ratification principles) for TCPA violations.

As to direct liability, the court agreed that Subway was not the “actual sender” of the text, noting that “the complaint acknowledges that T-Mobile is the entity that physically sent out the text message…” In addition, the plaintiff did not assert that “Subway was intimately involved in giving instructions to T-Mobile regarding the details of the text message.” Strike one – against the claim of direct liability.

As to vicarious liability, the plaintiff alleged that Subway “‘engaged’ in a text message campaign ‘through a marketing partner’ and ‘had these text message calls made.’” However, the plaintiff failed to contend that “Subway controlled the timing, content or recipients of the text message.” In fact, he conceded that all of the recipients were T-Mobile customers and, therefore, Subway had no control over who received the message. As to apparent authority and ratification, the court again noted the recipients were all T-Mobile customers, part of a program to reward those customers just for that status and they were directed to T-Mobile’s website. Since there was no factual support for a claim that T-Mobile was communicating with its customers as Subway’s agent, application of apparent authority and ratification arguments were not sustainable. Strike two – against the claim of vicarious liability.

Lastly, in the third prong, Subway successfully invoked the TCPA exemption that “states that cellular carriers are exempt from TCPA prohibitions if they are messaging their own customers and the customers are not charged for the message.” The court agreed that this “exemption is not limited to messages regarding the wireless carrier’s services, but rather the inquiry is focused on the identity of the sender and whether the recipient is charged.” Here, again, all the recipients were T-Mobile customers, there were no assertions that they were charged and “the content falls squarely within the sort of communications anticipated between wireless carriers and their customers.” Strike three – the wireless carrier exemption applies to the text message. Considering a deal with wireless carriers in one of their promotional offerings to their customers? The Warciak decision is instructive for finding a light at the end of the TCPA tunnel should you be dragged in.