theory vicarious liability in order to get past a motion to dismiss the answer to that consistent with this court's longstanding precedent it on the nd question is whether the allegations in mr weiss yes complaint establish defendant's affirmative defense that the text message that he received falls under this narrow and so obviously complaint don't need to plead or nor need a plead facts but they have to make subways age what did subways do cording to the complaint to make you believe that teen mobile subways age the text message that my client received specifically calls out subway my you know you need to listen carefully to my question what did subway do to make your client believe that team mobile principle by what the principal says were dogs that were supposed agent cannot of itself create either actual or apparent agency the message from t mobile if it were from subway might cause and i'm asking quite precisely what's subway did not what team mobile did so i guess i'd like to be clear allegation is that the text messages from the subway that that it is a part of a subway marketing campaign and that i believe that that this that i thought it was agreed that the message was from gene mobile no i don't believe that it is you know in fact our allegation is that the message there are two separate questions here one question is who pressed the button to cause the technical message to be the broader question is who is the message from when when a judge asks the clerk to send an email the message the email is still from the judge even if the whatever happened between subway and we know there is some kind of agreement we know there must be a contract but we don't we don't have that we we don't know what happened between those so it may be that subway is still involved in the standing of the text message that they are  may well be that subway has direct control over all of this that would be in an agreement between subway and t mobile that's not public and that we're not privy to all we have is is a text message that we received that kind received that says you know this it claims to be from t mobile but then it uses subways trademark it uses subways name and so i don't think it's unreasonable to look at that and say well it seems like subway is involved in this and that  to make it to certainly put subway on notice that we're seeking to hold it vicariously liable the question is specifically how and it may well be a matter of control i think we would even have a good faith basis to allege that control but i don't think you know it would be effectively yes but what have you alleged that would make it possible that subway could be vicariously liable here it is it seems very unlikely to us that a text message could come that offers a free sandwich in a subway restaurant and that you know i think a reasonable inference from our complaint that and no one is contesting that subway did in fact honor this promotion if that be done without subways knowledge or approval or involvement in any way you can't just walk into a subway and show your phone and say please give me a free sandwich there has to has to be some kind of some kind of involvement i don't know whether you're just getting the need to show th kind of involvement is agency rather than subway agreeing with team mobile to sell it as many sandwiches as team mobile wants to buy that's not an agency relation it is possible  which i know you're unless subway did something clothing team mobile with a parent that's part of the problem or you're alleging is what t mobile did and not what subway did mean nd my nd question is what reason have you to believe that this is anything other than a buyer or seller relation that is that it's an agency relation rather than a standard say so one of the ways that agency can be created is that a principal who makes it makes a communication even through an agent that is that it intends people to rely upon right you can see at subway can intend to direct out to people i am you know i'm cloaking someone with authority and it can it can do that by directing an some way to use the trademark to offer a free sandwich to make but you know it an actual offer of product on behalf of subway that is an agency relationship that's that subway saying you know yes all who receive this text message the person who sent this is this is allowed to tell you on my behalf the information in here and to make this offer to you and i think that that does it does create an agency relationship  selling time subway is bought so it's the same with subway buys a page in a magazine you can't sue the magazine claiming that it's subways agent in those cases i think it is well understood that the communication is not the one from the magazine it's that paid advertising the patient is from the magazine but not as subways agent i think that folks reading it under that circumstance it would be reasonable to sue if there were if there was some sort of communication there would be reasonable to sue subway would be reasonable to sue the person who's making actually making the communication one wouldn't sue c v s for something set in that advertisement that wouldn't make any  might most famous person america st amendment case in american history somebody placed an ad and somebody who didn't like it sued the new york times i understand that i think in terms of you have any plausible argument that this is all other than team old buying sandwiches or allegation is in fact that this was a marketing campaign by subway i know what your allegation question is whether it is will work i think it is so i don't think it's strange to think that that a company might want to drive traffic to its stores by sending out a marketing campaign for a very by the way not just any sandwich but  subway would want would want that from t mobile would want to engage in that marketing campaign certainly i think that's the that's the type of allegation that can be credited as much if you're pursuing an agency theory do you agree that it vicarious liability turn on whether or not they agent is liable no for example if the agent is incapable of being held liable for reasons for example if that person is a child if the agent is a child right if you direct a guess st of all it's not it's not clear that she mobile wouldn't be liable here but either way i think it's a way that the liability the wireless carrier exception applies to the mobile could not be liable assuming that it does apply although again there's there's i think a serious question this narrow class of service related messages from wireless carriers but anybody a wireless carrier happens to work with but it wouldn't be extending it what it would be saying if the wireless carrier exception applies to t mobile itself messages from wireless carriers and is not intended to be looked at any broader than that and that includes when a rd party hires a wireless carrier to do something it would otherwise be allowed to do i think there's any indication that the  intended to allow folks to do that did your client sign an agreement with t mobile that authorized the mobile to send these texas to my my client and sign any agreement with him or was it part of that the carrier agreement that t mobile be this double arguments that they can make but for the moment no is there anything in that agreement that where there was an agreement to participate in this t mobile weekly program i don't i don't believe there was any any type subway may have sent that text but that is not correct under paragraph fourteen of the complaint which alleges that subway engaged team mobile to send that text so we're not talking about a case of direct liability here the allegations in the complaint have to view could be viewed through the lens of vicarious liability the district court correctly dismissed the claims against the mobile against i'm sorry going subway because the plaintiff has stretched too far and you heard me get confused about who the claim some are started about that is because the very essence of this case is about it t bubble text message but the planet has a burden here it's not just a burden to what else they have and what else they could allege and the plaintiff said we have nothing this is it and you heard that repeated today when we were when the panel asked for bases of all plausible claim what you heard was the nd is that on the allegations that are included in the complaint but content and the contents of this text message render in flozell any argument that this text was being directed and sent and controlled by subway this is a text about a team mobile service for its team mobile customers that he mobile tuesday's offering and included a link to a teen mobile website when the plaintiff clicked on that link if he had he would go to a t mobile website that told him how to get a t mobile app and that told him about the package of benefits that were available to t mobile customers just for being with t mobile it wasn't just subway if you look at that landing page which was appropriately before the court on the motion to dismiss and which the plaintiffs didn't challenge it also refers to wendy's wendy's as a competitor of subways an addition that informs the plaintiff how he and other team mobile subscribers can of train free stock that's not a subway directed advertising complaint it's not plausible for the kind of sick and it is the rd and finally there was no error and the failure to allowed leave to amend because the wireless carrier exemption applies here traditional common law agency which requires control as the just for car properly found there are no allegations at all in the complaint that subway controlled anything with respect to this text message all we have is necessarily create agency you need more unique control there are no allegations of control and that's why the plaintiffs have focused on apparent authority but that argument sue is fundamentally flawed here a critical element of apparent authority as what we call a manifestation of the principle words or conduct by the principle here subway creates a reasonable belief and the plaintiff that they were holding to mobile out is there there is nothing alleged in the complaint that was said by subway to the plaintiff directly or indirectly there is no conduct that is alleged by subway and you cannot point to the text message itself those are the words of t mobile to mobile is send in attacks and the case law is crystal clear under the decision under the smith the state cleared decision under the comments to the restatement of towards that you cannot point to the content of the agent to hold a principal so there is no plausible claim for a violation of the t c p a and the court correctly just missed the plaintiff's claim that brings us to the wireless carrier exemption and the wireless carrier exemption is another reason that the district court correctly dismissed the claim and let's start with a question and judge saini you ask about the relationship between these two arguments because they're probably makes sense to cover that before moving from one to the other even if the court were to find that there was a plausible allegation of agency and there is not here but if the court were to find that there is went there still could be no vicarious liability because principles of vicarious liability rely on imputing the wrongdoing or the liability of the agent to the principle that's a fundamental concept under agency law vicarious liability only attaches when the agent under the wireless carrier exemption then there can be no vicarious liability how do you respond to plaintiff's argument that that exemption only covers service record messages that is an argument that does not find support to create the exemption the f c c created an exemption for at that time calls later extended to text messages placed from a wireless carrier to its subscribers for which the subscribers were not charged period the end that was the exemption this text falls within the scope of that exemption it's indisputably a communication between t mobile and subscriber and there has never been any claim that the plaintiff was charged for that communication in two thousand and twelve the f c c had the opportunity to revisit the wireless carrier exemption and it considered a request for clarification from who  question that the mobile apps was could you clarify whether this exemption an awesome show applies to communications about new products not services new products and not draw a line that took marketing communications outside the scope of the exemption and the entirety of that two thousand and twelve proceeding where the f c c reiterated the exemption  about marketing it was about the heightened consent requirements that may apply to marketing communications there's very little case law on this exemption do you have any explanation for why that this your honor i don't have an the scope of the exemption is broad on its phase and there is no bases for restricting it to marketing communications the plaintiff argues that it's limited to services that's not correct under the order but even if you were to  consider some sort of a limitation the language in the f c c order that refers to services that's not wireless service it says customer services and this texas clearly about it t mobile customer service the only way that you get access to this to mobile tuesdays program is by being as you mobile customer and we know that from the complaint it says just for being with t mobile so the wireless carrier exemption applies here you have seen some references perhaps in the plaintiff's briefing to a altogether different order of the f c c that's an order back in two thousand and three that they claim put some limits on the wireless carrier exemption just want to point out that entire proceeding had nothing to do with wireless carriers or the wireless carrier exemption it was addressing an exemption that applies to calls to residential phone finally on line carriers and so that is simply and your honor the plaintiffs have stretched too far here they have for reasons that have now been set in court to avoid an arbitration clause suit a party that did not send the text message and judge saying leave just to follow up on a question that you have to ask the relevant contract is and the record because we have been up to the th circuit before and that proceeding it was on a motion to compel arbitration under a rd party are equitable stoppel theory of the enforcement and at that time that contract was in the record and that does allow for