Washington State's Consumer Electronic Mail Act strikes again
- Peter Schneider
- Mar 19
- 4 min read
I've written previously about Washington State's commercial electronic mail act (CEMA) prohibition on unwanted text messages, and recently a plaintiff used that law to bring claims against Capital One.
Capital One had one of these obnoxious "refer a friend" programs where by a couple clicks and they would send a text to all the contacts in your phone promoting Capital one. If a contact signs up, you get a reward. But your contacts didn't ask for the text messages, Tamie Jensen sued Capital One for getting them, and Capital One moved to dismiss in Jensen v. Capital One Fin. Corp., No. C24-0727-KKE, (W.D. Wash. Feb. 25, 2025) using a few arguments you don't see in most telemarketing cases. I won't bury the lead, the motion was denied.
One of the arguments Capitol One uses is section 230 of the Communications Decency Act, which essentially gives immunity to providers of interactive computer services for liability arising from content created by third parties. This law allows YouTube to not get sued into the ground for the content created by the video uploaders.
Capitol One argued that the offending text messages were from the person trying to get a reward, not Capitol One, and Jensen argued that the message she received was composed entirely by Capitol One. Jensen's argument won the day.
the purpose of Section 230 immunity—to encourage Internet service providers to voluntarily monitor and edit user-generated speech in internet traffic—would not be served by protecting Capital One from liability in this case. Capital One has not shown that it is entitled to Section 230 immunity for text messages forwarded by its customers that it authored entirely itself, and thus the Court finds that the CDA does not provide a basis for dismissing Jensen’s claims.
Next, Capitol One argued that because CEMA was interfering with powers to advertise given it by federal law, it was preempted. The court found that CEMA applied to all entities, not just business, and CEMA's aim was to prevent deceptive and unfair business practices and Capitol One would not be seriously impacted [because, you know, presumably Capitol One should already not participate in deceptive and unfair business practices].
Finally we get to the telemarketing part. CEMA imposes liability for persons conducting business in Washington State who initiate or assist in transmitting a commercial text message to a telephone number assigned to a Washington resident's cell phone.
CEMA defines “assist the transmission” of a text message to refer to the provision of “substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit” a commercial text message “when the person providing the assistance knows or consciously avoids knowing that the initiator of the [text message]” will or intends to violate the CPA. WASH. REV. CODE § 19.190.010(1).
Capitol One admitted it assisted in sending these text messages but argued it wasn't substantial. Although Capital One emphasized the part of the process that is outside its control (when to send messages, who to send messages to, whether Capital One’s provided language should be edited or sent as is), those arguments went to the merits of a CEMA claim, rather than the sufficiency of Jensen’s allegations.
Capital One acknowledges that courts in this district have rejected arguments similar to its arguments here. Capital One attempts to distinguish those cases on the basis that Capital One maintained less control over the transmission process in the texts at issue here. In Frank, the defendant created software that allowed a business to compose and initiate commercial text messages to its customers, but the defendant did not itself compose the text messages or create a process by which the customers were encouraged and incentivized to send the messages, as did Capital One here Rather, the assistance provided by Capital One is orders of magnitude greater than the defendant provided in Frank, where the court found that the defendant provided “some form of assistance” to the business in sending text messages, but that the assistance described by plaintiff was not “substantial.”
You have to love telemarketers "Capital One also attempts to distinguish Bottoms and Moore on the grounds that on its mobile app, it notified its customers that it should only send texts to people who have consented to receive the text messages". Capitol One botched the execution of this though:
Capital One’s description of the notice is only partially accurate: the notice on the mobile app indicates that the customer should have received consent to send “text messages” to the recipient, but not that the customer should have received consent to send this particular commercial text message.
I have not seen the underlying complaint so I don't know if there are Telephone Consumer Protection Act claims but I suspect not, or they would also have come after them in the complaint. So CEMA was able address bad corporate behavior that could not have been addressed under federal law.
CEMA is also better than the TCPA in one way because damages are set at $500 per call, while the TCPA's § 227(c) is up to $500, but damages under the TCPA can be trebled for willful or knowing violations.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
Comentarios