Weister v. Vantage Point AI, LLC

1

JASON WEISTER, Plaintiff, v. VANTAGE POINT AI, LLC, Defendant.

No. 8:21-cv-1250-SDM-AEP

United States District Court, M.D. Florida, Tampa Division

August 3, 2022

ORDER

STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.

After texting “DEMO” in response to a radio spot touting VantagePoint AI's “artificial intelligence” stock trading software, Jason Weister received by text a hyperlink to register for a training webinar. Weister decided not to register but in the following months received from VantagePoint fifteen pre-recorded “ringless” voicemails that persisted in inviting Weister to register for other training webinars. During these training webinars, VantagePoint allegedly attempts to sell the artificial intelligence software. Weister sues under the TCPA and on behalf of a putative class.

In accord with the parties' joint litigation plan and before class discovery begins, VantagePoint moves (Doc. 29) for summary judgment on Weister's claim. Weister responds (Doc. 33) in opposition and VantagePoint replies (Doc. 36) in support of summary judgment.

BACKGROUND

The following facts are either undisputed or construed in Weister's favor. VantagePoint sells “financial technical analysis software, artificial intelligence, for retail [stock] traders.” (Doc. 41-1 at 5) VantagePoint hosts live and webinar events to train traders to use VantagePoint's “artificial intelligence” software. (Doc. 41-1 at 2) To promote these training events Trader Marketing Group, an affiliate of VantagePoint purchases radio spots and transmits promotional texts and voicemails to consumers. (Doc. 41-1 at 3)

In December 2020, Trader Marketing Group ran a radio spot, which stated, “Text DEMO to 411411 to get what you need to stay ahead of market trends and find explosive moves before they happen,” “Text DEMO to 411411 to find out how our technology can forecast market trends up to 3 days in advance with incredible accuracy,” and “Text DEMO to 411411 and experience VantagePoint for free.” (Doc 36-2 at ¶ 4) After hearing the radio spot, Weister texted “DEMO” to 411411. (Doc. 33-1) In response, Weister received a text stating, “VP: START NOW! https://vpai.us/start-naw for a free online AI class or call 800-732-5407 during business hours ET. STOP to cancel.” (Doc. 33-1) Weister decided not to attend the event and neither responded to the text nor entered information on the webpage.

From January through March 2021, Weister received fifteen pre-recorded “ringless” voicemails promoting training events hosted by VantagePoint. (Doc. 29-3 at 6) To transmit these “ringless” voicemails, Trader Marketing Group uses “Slybroadcast,” a program that transmits in rapid succession two calls: the first call to momentarily occupy the cellular telephone's line and the second call to bypass the occupied line, access the voicemailbox directly, and deliver the pre-recorded voicemail. (Doc. 33-4)

Although the scripts for VantagePoint's pre-recorded ringless voicemails differ, each script invites the recipient to attend a “free live training webinar” about VantagePoint's artificial intelligence software. (Doc. 29-1 at 11-25) Some of the scripts offer a “free AI forecast” for each webinar attendee. (Doc. 29-1 at 22) Also, each voicemail script informs the recipient of the option to cease voicemails by visiting a

URL and entering both a name and a cellular telephone number. (Doc. 29-1 at 22) The following voicemail transcription represents the fifteen ringless voicemails Weister received.

Hi, this is Harold calling from VantagePoint AI. I hope you're having great success in the financial markets. It's currently Friday, January 29th. The reason for my call is that you had recently expressed an interest in wanting to learn more about artificial intelligence trading. So I wanted to connect and extend an invitation and let you know that this afternoon at two o'clock Eastern time, we're actually doing a live webinar where we're going to discuss the two trading strategies using artificial intelligence to dominate 2021. To register, all you have to do is go to tradingeducation.com. That's tradingeducation.com. On this webinar, what we do is we're going to basically dissect every sector of the market so that you can see what the artificial intelligence has been forecasting. But most importantly, you're also going to get the opportunity to see what artificial intelligence is forecasting for the days and weeks ahead.

All attendees to the webinar will also get a free AI forecast for whatever assets you're trading in your portfolio that you're unsure about and would like to see what the artificial intelligence is forecasting for them. So head on over to tradingeduca-tion.com, get yourself registered. And I look forward to seeing you on the webinar very shortly. If for some reason you want to stop receiving these voicemail invitations, that's fine. Simply head on over to stopvoicemail.com and you will be remove[d] from the invitations list. Look forward to seeing you on the webinar very shortly. Thank you.

(Doc. 29-1 at 22) Although by texting “DEMO” to 411411 Weister consented to receive a text containing the registration link, Weister contends that the fifteen pre-recorded messages exceed Weister's consent and subject VantagePoint to liability under the TCPA.

DISCUSSION

Enacted in 1991, the TCPA prohibits a person's “mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or pre[-] recorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A). In other words, the TCPA subjects to liability a person who (1) uses an automatic telephone dialing system or a pre-recorded voice (2) to call (3) a cellular telephone (4) in the absence of an emergency purpose or the “prior express consent” of the recipient.

The TCPA offers no definition of “prior express consent” but delegates to the FCC the power to “prescribe regulations to implement” Section 227. In a 2012 order, the FCC requires “prior express consent” to take the form of “prior express written consent” if the call constitutes telemarketing or advertising. In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830 (2012); 47 C.F.R. § 64.1200(a)(2). Before the 2012 FCC order, an oral acceptance or the provision of a telephone number furnished “prior express consent” for telemarketing advertising, and any other category of communication. But under the 2012 FCC order, the called party must furnish “prior express written consent,” which means “an agreement, in writing, bearing the signature of the person called that clearly authorizes . . . advertisements or telemarketing messages.” 47 C.F.R. § 64.1200(f)(9).

Although texting “DEMO” furnishes consent to receive the text containing the registration link, Weister claims that the fifteen pre-recorded ringless voicemails that followed constitute telemarketing for which Weister never furnished the “prior express written consent” required under the 2012 FCC order. Moving for summary judgment, VantagePoint argues (1) that by texting “DEMO” Weister invited the fifteen pre-recorded voicemails and thus suffered no injury-in-fact even in the absence of prior express written consent, (2) that the FCC's heightened form of consent violates the First Amendment, and (3) that the fifteen pre-recorded voicemails constitute neither telemarketing nor advertising. Weister opposes each argument.

I. The standing challenge

Under Section 2 of Article III of the United States Constitution the “judicial power” extends to “cases” and “controversies.” To constitute a case or controversy, the plaintiff must demonstrate “standing” to sue. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (Alito, J.) (“The doctrine [of standing] developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.”). The “irreducible constitutional minimum of standing” comprises (1) an “injury-in-fact,” (2) a “causal connection” between the plaintiff's injury and the defendant's conduct, and (3) a likelihood that a favorable decision can redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (Scalia, J.).

An “injury-in-fact” requires “an invasion of a legally protected interest” that is “concrete and particularized” and that is “actual or imminent not conjectural or hypothetical.” Lujan, 504 U.S. at 560. A concrete injury must “be ‘de facto'; that is, it must actually exist.” Spokeo, 578 U.S. at 340 (citing BLACK'S LAW DICTIONARY 479 (9th ed. 2009)). Although a concrete injury is “real” and not “abstract,” an “intangible harm” can constitute a concrete injury. Spokeo, 578 U.S. at 340-41. But an intangible harm causes a concrete injury (1) only if the intangible harm “has a close relationship to a harm” cognizable “traditionally” at common law and (2) only if the “judgment” of Congress “elevat[es] to the status of legally cognizable” an injury “previously inadequate in law.” Spokeo, 578 U.S. at 341 (quoting Lujan, 504 U.S. at 578). However, the injury-in-fact requirement is “not automatically satisf[ied] . . . whenever a statute grants a right and purports to authorize a suit to vindicate it.” Spokeo, 504 at 341. Even an intangible harm identified by Congress must have some analogue to a harm historically recognized at common law. For instance, a “bare procedural violation [of a statute], divorced from any concrete harm,” cannot establish an injury-in-fact under Article III. Spokeo, 504 at 341 (reasoning that a credit report containing inaccurate marital and employment information causes no concrete injury...