TCPA Complaint Dismissal Against Subway Affirmed by Seventh Circuit

BY Martha A. Medina

A Seventh Circuit judge recently affirmed the dismissal of a Telephone Consumer Protection Act ("TCPA") proposed class action against Subway. In the case, Matthew Warciak, alleged that he received an unsolicited coupon for a free six-inch Subway sandwich from his mobile carrier, T-Mobile. He alleged that Subway should be vicariously liable under the TCPA for the promotional messages sent through the phone company's promotional "T-Mobile Tuesdays" text messages (a service from which customers have the option to opt out) because T-Mobile and Subway had formed an agency relationship.

"The TCPA prohibits any person, absent prior express consent, from making a call using an automatic system to any telephone number assigned to a cellular telephone service for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii). Congress passed the TCPA to regulate telemarketing communications and prevent shifting the costs of advertising to consumers.

Previously, the Illinois federal trial court found that T-Mobile, not Subway, actually engaged in the text message campaign. T-Mobile, however, was not a party in the case due to an arbitration clause in its subscriber agreement. In the Complaint, Warciak relied entirely on T-Mobile's conduct in attempting to hold Subway liable, but made no mention of how Subway created actual or apparent authority to have T-Mobile transmit the promotional messages. Additionally, the federal court noted that the messages did not violate the TCPA because consumers were not being charged for receiving these messages – the Act creates the wireless carrier exemption under the TCPA.

On appeal, Warciak argued that consumers did not agree to receive such text messages in violation of the TCPA. In this case, the promotional text messages from T-Mobile were under the purview of the TCPA. The Seventh Circuit explained that even if T-Mobile had led recipients of its messages to believe they came from Subway, that is not enough to sustain his claims because there were no facts suggesting that Subway had any control over the timing or content of the promotional messages. According to the court, "While an agency relationship can be created by contract, not all contractual relationships form an agency.”

Tags: Tcpa

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Martha A. Medina


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