PRLA Restaurant & Lodging Matters Winter 2020

Winter 2020 • PENNSYLVANIA RESTAURANT & LODGING matters •  27 An important case for hotels that text customers regarding reservations was decided in December 2018 in the Northern District of California. In An Phan v. Agoda Company PTE. LTD. , 6 the Plaintiff received a text message confirming a reservation made online and encouraging the Plaintiff to download the company’s cellular phone application should he need to modify the reservation. Importantly, the Plaintiff voluntarily provided his cell phone number at the time of making the reservation and agreed to the terms and conditions which included acknowledging that text messages may be sent to the number provided. The court determined that the text message was not advertising nor telemarketing, but rather, a continuation of the ongoing transaction. The Court quotes an FCC Order that states that texts “whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements,” and therefore do not require written consent. The Court held that the Plaintiff consented to this type of text message by providing his phone number to the company at the time of registration and consenting the terms and agreements. The Court distinguishes this type of text from those that advertise an application and encourage that the consumer download the application to take advantage of services not yet purchased as well as those texts soliciting visits to websites that promote services. Because of the lack of clarity in the law, service industry professionals should take caution while corresponding to customers or potential customers. • If you have any questions concerning this or other legal issues, please contact Stan L. Tinter (717-763- 1121; stinter@shumakerwilliams.com) at Shumaker Williams, P.C., PRLA’s General Counsel.