NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AN PHAN, as an individual and on behalf of No. 19-15015
all others similarly situated,
D.C. No. 5:16-cv-07243-BLF
Plaintiff-Appellant,
v. MEMORANDUM*
AGODA COMPANY PTE. LTD., a
Singapore Private Limited Liability
Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted March 5, 2020**
San Francisco, California
Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.
An Phan appeals the district court’s grant of summary judgment in favor of
Agoda Company Pte. Ltd., in a putative class action Phan brought under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b). Phan claimed
that Agoda sent automated commercial text messages containing advertising or
telemarketing to his cellular phone without his prior express written consent in
violation of the TCPA. Phan had made reservations through the online travel
agency when he received text messages stating, “Good news! Your Agoda
booking [number] is confirmed. Manage your booking with our free app
http://app-agoda.com/GetTheApp.” Reviewing the district court’s grant of
summary judgment de novo, we affirm. Wallis v. Princess Cruises, Inc., 306 F.3d
827, 832 (9th Cir. 2002).
Approaching the matter “with a measure of common sense,” Chesbro v. Best
Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012), the text messages in question
do not constitute “advertising” within the meaning of the TCPA. “Advertisement”
is defined by regulation as “any material advertising the commercial availability or
quality of any property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). Messages
that “facilitate, complete, or confirm a commercial transaction that the recipient
has previously agreed to enter into with the sender are not advertisements.” In re
Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 21 FCC Rcd.
3787, 3812 (2006). By booking travel arrangements through Agoda’s website,
Phan agreed to enter a commercial transaction with Agoda. A text message
confirming that transaction is not advertising.
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Phan argues that by including a link to download the app, Agoda was
advertising its app as one of its products. Considering the context and content of
the text messages, we do not find that contention persuasive. As the district court
recognized, and as many apps are, Agoda’s app is functionally the same as its
website. Agoda customers could use either Agoda’s website or the app to manage
existing reservations, just as the messages informed Phan. Because the messages’
references to the app indicate a purpose to facilitate a commercial transaction—to
manage existing bookings—they do not “demonstrate a prohibited advertising
purpose.” See Chesbro, 705 F.3d at 918.
Further, Agoda’s messages do not mirror the “dual purpose” calls the FCC
has characterized as unsolicited advertisements. See In Re Rules & Regs.
Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14098
(2003) (describing dual purpose communications as those which “may inquire
about a customer’s satisfaction with a product already purchased, but are motivated
in part by the desire to ultimately sell additional goods or services,” like “calls
from mortgage brokers to their clients notifying them of lower interest rates” or
“calls from phone companies to customers regarding new calling plans”). The
texts at issue here did not reference any other good or service Agoda offered.
Nor do the text messages constitute “telemarketing” because they do not
evince a “purpose of encouraging the purchase or rental of, or investment in,
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property, goods, or services.” 47 C.F.R. § 64.1200(f)(12). The messages contain
no content encouraging the purchase of any of Agoda’s services; they simply
confirmed a transaction Phan agreed to enter with Agoda. Accordingly, Agoda
was not required to obtain Phan’s express written consent prior to sending the
messages at issue.
AFFIRMED.
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