A District Court judge in California has partially granted a defendant’s motion for summary judgment after it was sued for allegedly violating the Telephone Consumer Protection Act even though the plaintiff never actually received the text message in question.
A copy of the ruling in the case of Stone v. AT&T Services and Vehicle Agency can be accessed by clicking here.
The plaintiff scheduled a service call with AT&T, which used Vehicle Agency to send out text message reminders to customers about upcoming service calls. The text messages would include the name and photograph of the technician that would be making the service call.
In this case, the defendant sent the text message reminder to the plaintiff’s RAZR phone. After the service call, the plaintiff received 111 more text messages from the defendant. The plaintiff contacted the defendant to tell them to stop sending messages.
An expert who examined the plaintiff’s cell phone determined that because it was such an old phone the carrier’s “MMS Relay server remained in a state of perpetually attempting to send the single MMS message to Plaintiff’s RAZR phone.”
The judge ruled that the plaintiff could not prove he received the original MMS message that included the technician’s name and picture, and “therefore could not establish TCPA liability for this message.” As for the other 111 SMS messages, the judge ruled that a genuine issue of material fact still remains whether they were initiated by the defendant or not.
