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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

AN PHAN,

Plaintiff,

v.

AGODA COMPANY PTE. LTD.,

Defendant.

Case No. 16-cv-07243-BLF 

ORDER GRANTING DEFENDANT’S 

MOTION FOR SUMMARY 

JUDGMENT

[Re: ECF 37]

On four separate occasions after booking travel on Defendant Agoda Company Pte. Ltd.’s 

website, Plaintiff An Phan received a text message from Agoda that read “Good news! Your 

Agoda booking [number] is confirmed. Manage your booking with our free app http://appagoda.com/GetTheApp.” Plaintiff filed this putative class action asserting a single cause of action: 

violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. Before 

the Court is Defendant’s pre-certification motion for summary judgment. See ECF 37. The sole 

question the Court must answer is whether the text messages Phan received qualify as advertising 

or telemarketing under the TCPA. The Court holds that they do not.

Accordingly, for the reasons discussed below, Agoda’s motion for summary judgment is 

GRANTED.

I. FACTS1

A. Agoda’s Booking Process and Policies

Defendant Agoda Company Pte. Ltd. (“Agoda”) is an international travel service provider 

based in Singapore that allows consumers to book travel accommodations, including hotels and 

 

1 The facts relevant to this motion are undisputed, except as otherwise noted. 
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flights, online. See Compl. ¶ 11. ECF 1-2; Decl. of Alexis Siarkiewicz ISO MSJ ¶¶ 2–3 

(“Siarkieweicz Decl.”), ECF 37-2. Agoda has both a website and a phone app that allow 

customers to make bookings through substantively similar processes. Decl. of Anne Kelts ISO 

MSJ (“Kelts Decl.”), Ex. 2 at 28–30, ECF 37-9. The app, like the website, has various 

functionalities, including allowing users to manage travel reservations, access vouchers and 

confirmation numbers, and locate booking properties on a map. Id. at 31; Kamonchanok 

Rattanasrimata Decl. ISO MSJ ¶¶ 9–10 (“Rattanasrimata Decl.”), ECF 37-4. The app allows

customers to both manage existing bookings and create new bookings. See Zelenski Decl. ISO 

Opp. to MSJ (“Zelenski Decl.”), Ex. 1 at 14, 18–19, ECF 43-1. And the app is capable of 

“offering lower prices than those available on Agoda’s website” and “showing deals that could not 

be shown on Agoda’s website.” Id. at 20–21. Agoda also advertises the app as having these 

capabilities. Id. at 19–21. 

During the booking process, the customer first chooses the specifics of his booking, such 

as location, travel dates, and number of travelers. Id. at 28. Once the customer has selected these 

criteria, he enters in his personal information, either by signing into an existing Agoda account or 

continuing as a guest, and then proceeds to the payments page. Id. On the payments page, the 

customer enters the necessary information to pay for his booking, though the customer can choose 

to pay at the time of booking or pay later. Id. at 29. On that same page, in blue hyperlinked text, 

are the terms “privacy policy” and “general terms,” which link the user to the full text of Agoda’s 

Privacy Policy and Terms of Use, respectively. Id. at 8, 30. Agoda represents that its Privacy 

Policy and Terms of Use have remained materially the same since 2013, the beginning of the 

putative class period here. See id. at 8; Compl. ¶ 30.

Directly above the “Book Now” button, also on the payments page, is the statement “I 

agree with the Privacy Policy and general terms by booking this room.” Id. at 29. By completing 

the booking and agreeing to Agoda’s Terms of Use, the customer agrees “to receive confirmation 

messages (email and/or SMS),” which the Terms of Use describe as “transactional” and as “not 

part of the newsletters or marketing mails[] from which [users] can unsubscribe.” Kelts Decl., Ex. 

3 at AG000089. The Privacy Policy further states that the “confirmation” text messages “are not 
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marketing messages,” but instead are “part of [the user’s] accommodation reservation process” 

and “contain information for [the user] to check in at [his] booked accommodation.” Id., Ex. 4 at 

AG000096. The user cannot opt out of these text messages. Id.

Before the booking process is completed, the customer also selects whether to “opt in” or 

“opt out” of receiving Agoda’s marketing promotions. Decl. of Richard Lyne ISO MSJ ¶ 6 

(“Lyne Decl.”), ECF 37-1. Once the booking process is completed, and the third-party hotel has 

confirmed to Agoda the customer’s reservation, Agoda, through its third-party global messaging 

service provider Clickatell, sends a text message to the customer to confirm the booking. Kelts 

Decl., Ex. 2 at 30; Kelts Decl., Ex. 1 ¶ 5, ECF 37-8. Agoda sends confirmation text messages only 

to users who have both provided their phone numbers and agreed to Agoda’s Terms of Use and 

Privacy Policy. See id., Ex. 2 at 7. Agoda sends these text messages, in part, “to encourage 

customers to download the Agoda mobile-device application in order to manage with the Agoda 

app the requested booking, and also in part, . . . to confirm the requested booking for the 

customer.” See Zelenski Decl., Ex. 2 at 10, ECF 43-2.

B. Phan’s Use of Agoda’s Services and Receipt of Text Messages

On November 4, 2016, Plaintiff An Phan booked three hotel reservations through Agoda’s 

website, and he made a fourth reservation on November 10, 2016. See Compl. ¶¶ 18–19; Kelts 

Decl., Ex. 2 at 14. For each booking, Phan provided his telephone number and agreed to the 

Terms of Use and Privacy Policy. Id. at 15. He also opted in to receiving marketing messages 

during the time period at issue here. Rattanasrimata Decl., Ex. A, ECF 37-5. At the hearing on 

this motion, the parties disputed whether Phan paid for the booking at the time of booking or later 

when he completed his travel. After Phan completed each booking, Agoda sent him the following 

text message: “Good news! Your Agoda booking [number] is confirmed. Manage your booking 

with our free app http://app-agoda.com/GetTheApp.” Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The 

URL contained a hyperlink to download Agoda’s app. Id.

C. Procedural History

On November 14, 2016, Plaintiff filed the instant class action Complaint in the Superior 

Court of California for the County of Santa Clara against Agoda, Agoda International USA Inc., 
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and the Priceline Group Inc. See generally Compl. In his Complaint, Plaintiff asserts a single 

cause of action under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. 

§ 227. On December 19, 2016, the case was removed to this Court. See ECF 1. On January 23, 

2017, Plaintiff voluntarily dismissed the two non-Agoda Defendants with prejudice. See ECF 12. 

On January 26, 2017, Agoda filed an Answer to the Complaint. See ECF 15. On April 25, 2017, 

the Court held a case management conference, setting the deadline to hear dispositive motions in 

this case to December 12, 2019. The parties later stipulated that fact discovery would close on 

February 10, 2020. ECF 27. On June 21, 2018, Agoda filed the instant motion for summary 

judgment, ECF 37, and the Court held a hearing on the motion on November 8, 2018, ECF 74. 

The Court has not yet certified a class in this case.

II. LEGAL STANDARD

“A party is entitled to summary judgment if the ‘movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 

Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 

56(a)). The moving party has the burden of establishing that there is no dispute as to any material 

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The court must view the evidence in 

the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s 

favor.” City of Pomona, 750 F.3d at 1049. “[T]he ‘mere existence of a scintilla of evidence in 

support of the plaintiff’s position’” is insufficient to defeat a motion for summary judgment. Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “‘Where the record taken as 

a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine 

issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986)).

 III. DISCUSSION

In its motion for summary judgment, Agoda argues that the Court should grant summary 

judgement on Phan’s sole claim, for violation of the TCPA, for three reasons: (1) Phan provided 

the required level of consent under the TCPA because the text messages he received did not 

contain advertising and were not telemarketing; (2) Phan waived his rights to assert his TCPA 
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claim by agreeing to Agoda’s Terms of Use and Privacy Policy and by continuing to make 

bookings with Agoda after receiving the allegedly unlawful text messages; and (3) Phan agreed to 

a Singapore choice of law and venue clause in the Terms of Use. See Mot. at 3–4. As discussed 

below, the Court agrees with Agoda’s first argument, and thus does not address Agoda’s second 

and third arguments.

A. Requirements Under the TCPA

The TCPA makes it “unlawful for any person within the United States . . . (A) to make 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 . . . (iii) to any telephone number 

assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). “The three elements 

of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic 

telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio 

Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). Text messages are considered 

“calls” under the TCPA. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 

2009).

As to the third element, consent is an affirmative defense on which the defendant bears the 

burden of proof. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 

2017). The type of consent required depends on the content of the message. If the text message 

“includes or introduces an advertisement or constitutes telemarketing,” the sender is required to 

obtain “prior express written consent” of the recipient. 47 C.F.R. at §§ 64.1200(a)(1) and (2) 

(emphasis added). To constitute advertising, the text message must contain “material advertising 

the commercial availability or quality of any property, goods, or services.” Id. § 64.1200(f)(1). 

To constitute telemarketing, the text message must be “for the purpose of encouraging the 

purchase or rental of, or investment in, property, goods, or services.” Id. § 64.1200(f)(12). Courts 

approach the question of whether a message constitutes advertising or telemarketing with “a 

measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). 

If the message contains advertising or is telemarketing, the sender must have secured, prior to 

sending the message, the signature of the recipient in a written agreement that includes several 
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specified disclosures. See 47 C.F.R. § 64.1200(f)(8). 

If the text message does not contain advertising and is not telemarketing, the requirements 

for prior express consent are less stringent. A consumer must only “knowingly” agree to receive 

such messages by providing his phone number for the reasons served by the message (i.e., to 

transact the business contemplated when the recipient provided his number). See Van Patten, 847

F.3d at 1044–45.

Finally, if the text message serves a “dual purpose”—that is, includes both 

advertising/telemarketing and merely informational or transactional communications—the 

messages are subject to the heightened express written consent requirements. See In the Matter of 

Rules and Regulations Implementing the TCPA of 1991, Report and Order, 18 FCC Rcd. 14014, 

14097–99 (July 3, 2003).

B. Application of the TCPA to the Text Messages Received by Phan

Though a claim under the TCPA has three elements, Agoda does not dispute that Phan 

satisfies the first two elements of the TCPA claim—that Agoda sent text messages to Phan’s 

cellular phone using an automatic telephone dialing system. See generally Mot. (failing to 

challenge these elements). Instead, Agoda’s motion for summary judgment argues that it wins on

the third element, because it has successfully established an affirmative defense of consent. See 

Reply at 3, ECF 46 (“[T]he parties’ only disagreement” is “whether or not the text messages that 

Plaintiff received can be classified as telemarketing or advertising under the TCPA . . . such that 

Plaintiff’s actions constituted sufficient consent.”); Opp. at 1 (“[T]he only element at 

issue . . . is . . . whether Agoda’s messages were sent without Plaintiff’s consent.”). The question 

of whether Phan consented turns solely on whether the text messages here contained advertising or 

constituted telemarketing. Indeed, Phan concedes that his claim fails if the text messages are 

neither advertising nor telemarketing. See Opp. at 24 (“Plaintiff agrees with the notion that, if the 

at-issue messages do not constitute advertising or telemarketing, they do not violate the TCPA.”).

Agoda argues in its motion that the text messages were neither advertising nor 

telemarketing, but instead were “merely transactional” because they served only two purposes: (1) 

to confirm “that [Phan’s] bookings were reserved with the third party hotel”; and (2) to direct Phan 
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to the app “to locate and modify the booking prior to the completion of [his] stay.” Mot. at 11. As 

to the latter purpose, Agoda argues that directing Phan to the app so he could modify his booking 

was merely transactional because the business transaction between Agoda and Phan did not 

conclude until Phan completed his stay at the hotels he booked through Agoda. Id. at 14. Because 

the transaction was ongoing at the time the text messages were sent, the argument goes, the link to 

the app was directed at completing the ongoing transaction, as opposed to marketing a separate 

product. Id. at 13–14 (citing Aderhold v. car2go N.A., LLC (“Aderhold II”), No. 14-35208, 668 

Fed. App’x 795, 796 (9th Cir. 2016)). For the same reasons, the inclusion of the hyperlink to the 

app alone does not transform these transactional messages into advertising. See id. at 12.

Phan, by contrast, argues that the messages were advertising or telemarketing, and not 

merely transactional, because the business transaction was completed at the time of booking, 

rendering the app-download link “superfluous.” Opp. at 18; see Opp. at 22 (“Plaintiff’s 

bookings . . . were complete as of the date he received his messages.”). Moreover, Phan asserts, 

the messages “were sent specifically to encourage the use of the app” and “the app was 

specifically designed to allow message recipients to undertake transactions having nothing to do 

with the reservation that was being confirmed by the text messages themselves.” Id. at 20. As 

such, regardless of the partially confirmatory nature of the text messages, the link to the app 

served to advertise or market the commercial availability of a separate Agoda product. See Opp. 

at 3.

In making their arguments, both parties analogize to and distinguish manifold cases in this 

Circuit and others. A review of this case law is instructive here.

In Aderhold II, the Ninth Circuit affirmed the district court’s ruling that the text message at 

issue was not “telemarketing.”2 668 Fed. App’x at 796. The plaintiff in that case had signed up 

for a car-sharing service and immediately received a text message prompting him to enter an 

 

2

 Though the Ninth Circuit discussed only telemarketing, the district court necessarily held that

the text message was neither advertising nor telemarketing, because it held that it did not need to 

determine whether the plaintiff had provided the express written consent necessary for advertising 

or telemarketing texts. See Aderhold v. Car2go N.A., LLC (Aderhold I), No. C13-489-RAJ, 2014 

WL 794802, at *10 (W.D. Wash. Feb. 27, 2014). 
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activation code into a link emailed to him. See Aderhold v. Car2go N.A., LLC (Aderhold I), No. 

C13-489-RAJ, 2014 WL 794802, at *1 (W.D. Wash. Feb. 27, 2014). The district court concluded 

that the message was not telemarketing because it served the limited purpose of allowing the 

plaintiff to complete his registration. Id. at *9. The court rejected the plaintiff’s argument that 

diversion to the defendant’s website was sufficient to render the message telemarketing simply 

because the website also contained promotions for the defendant’s services. Id. In affirming, the 

Ninth Circuit agreed with the district court that the “message contain[ed] no content encouraging 

purchase of [the defendant’s] services” and was “directed instead to completing the registration 

process.” Aderhold II, 668 Fed. App’x at 796.

Importantly, the Ninth Circuit followed a Federal Communications Commission’s 

determination that messages “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.” Id. (quoting In re Rules & Regs. Implementing the Tel. Consum. Prot. Act of 

1991 (“In re Rules”), 21 FCC Rcd. 3787, 3812 ¶ 49 (Apr. 6, 2006)). One example provided by the 

FCC of a message that would not be an unsolicited advertisement was “[a] travel itinerary for a 

trip a customer has agreed to take or is in the process of negotiating.” In re Rules, 21 FCC Rcd. 

3787, 3813 ¶ 49. The FCC ultimately held that messages “relat[ing] specifically to existing 

accounts and ongoing transactions” do not constitute advertising. Id. at 3812 ¶ 49.

Using the same rationale, several district courts have held that messages or calls were not 

advertising or telemarketing because they pertained to ongoing transactions. In Wick v. Twilio 

Inc., the plaintiff provided his personal information, including his telephone number, in the course 

of ordering a free sample on a website, but abandoned the order before completing it. No. C16-

00914RSL, 2016 WL 6460316, at *1 (W.D. Wash. Nov. 1, 2016). He then received a text 

message (and call) instructing him to follow a link to complete his order. The court held this 

message was not telemarketing because “the purpose of these communications was customer 

service” and “related solely to the consumer transaction [the plaintiff] had initiated” but not yet 

completed. Id. at *2. The plaintiff had not alleged that the text “offered or encouraged the 

purchase of any product” other than the product he had begun to order online. Id. 
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Similarly, in Daniel v. Five Stars Loyalty, Inc., the plaintiff signed up for a Five Points 

rewards program and received a text message instructing him to “reply with [his] email to finish 

registering and get free pts!” No. 15-CV-03546-WHO, 2015 WL 7454260, at *1 (N.D. Cal. Nov. 

24, 2015). The Court agreed with the Aderhold I court that “a text sent solely for the purpose of 

allowing the recipient to complete a registration process that he or she initiated” did not constitute 

telemarketing. Id. at *4. Specifically, the text message at issue was not telemarketing because it 

did not “urge [the plaintiff] to ‘redeem’ Five Stars points, did not direct him to a location where 

points could be redeemed or where more information about the Five Stars program could be 

obtained, and did not reference shopping or purchasing.” Id. at *5.

The court in Mackinnon v. Hof’s Hut Restaurants, Inc. came to the same conclusion, albeit 

in a somewhat different scenario. No. 2:17-cv-01456-JAM-DB, 2017 WL 5754308 (E.D. Cal. 

Nov. 28, 2017). In that case, the plaintiff made a dinner reservation at the defendant restaurant 

and provided his phone number to receive confirmation of the reservation. Id. at *1. The 

defendant sent him a text message confirming the reservation and providing a link to “view 

specials.” Id. The Court held that the text message was not advertising or telemarketing because 

it “only served to confirm an expected commercial transaction (eating at Defendant’s restaurant) 

that Plaintiff had initiated.” Id. at *2 (citing Daniel and Wick). The inclusion of the link to view 

specials did not make the message advertising because it merely “facilitated Plaintiff’s dining 

transaction by allowing him to view specials on his cellphone before sitting down to dinner.” Id. 

See also Smith v. Blue Shield of Cal. Life Ins. Co., 228 F. Supp. 3d 1056, 1067 (C.D. Cal. 2017) 

(“[M]ere fact that parts of [the defendant’s] website contains the capability of allowing consumers 

to engage in commerce does not transform any message including its homepage into telemarketing 

or advertising”); accord Reese v. Marketron Broad. Sols., Inc., No. CV 18-1982, 2018 WL 

2117241, at *5 (E.D. La. May 8, 2018).

Other district courts have applied the TCPA to hold that certain calls and messages did 

constitute advertising or telemarketing. In Pedro-Salcedo v. Haagen-Dazs Shoppe Co., Inc., the 

plaintiff allegedly enrolled in store in the defendant’s rewards program and later that day received 

a text message stating, “Thank you for joining Häagen-Dazs Rewards! Download our app here: 
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[link].” No. 5:17-CV-03504-EJD, 2017 WL 4536422, at *1 (N.D. Cal. Oct. 11, 2017). The court 

held that the plaintiff had stated a claim that the text was advertising or telemarketing. Id. at *2. 

In doing so, the court distinguished the texts at issue in Daniel and Aderhold I because in those 

cases the links were included to allow the recipient to complete a registration, whereas the text in 

Haagen-Dazs made clear on its face that the recipient had already “join[ed]” the rewards program. 

Id. As such, the encouragement to “download [the] app” was unnecessary and could constitute an 

advertisement.

Similarly in Herrick v. QLess, Inc., the Court held that two messages related to plaintiffs’ 

wait times at certain establishments were advertisements. 216 F. Supp. 3d 816, 817 (E.D. Mich. 

2016). The first message encouraged the plaintiffs to sign up for an app that would allow them to 

see their “wait in real time, control when [they] get served & find more places with no lines—

[link]” and, the second message both informed them that their wait was over and included a link to 

the defendant’s website. Id. The court held the messages were advertising because they 

“advertised a ‘free’ app for the purpose of conveying the quality of [defendant’s] products and 

services and soliciting plaintiffs to recruit more business customers.” Id. at 819. In so holding, 

the Court rejected the defendant’s argument that the free nature of the app rendered it merely 

informational. Id. However, the Herrick court did not explicitly consider whether the transaction 

at issue (namely, the plaintiffs’ wait) was ongoing or had otherwise concluded.

In light of this case law and the requirements of the TCPA, this Court holds that the text 

messages Agoda sent to Phan were neither advertising nor telemarketing.

Both the context and the content of the messages dictate this result. As to the context, 

these messages were sent as part of an ongoing business transaction between Agoda and Phan. 

Phan used Agoda’s services to book a travel itinerary online. Up until the time he finished his 

travel, he could cancel that booking or otherwise modify it through Agoda. Kelts Decl., Ex. 2 at 

31; Rattanasrimata Decl. ¶¶ 9–10. As such, his transactional relationship with Agoda as to each 

booking continued through the time when he completed his travel. This scenario is directly 

comparable to Mackinnon, where the restaurant reservation was booked, but was not completed 

until the plaintiff ate dinner at the restaurant. Even assuming Phan paid for his booking on 
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Agoda’s website at the time of booking (as opposed to at the time of travel), this fact does not 

change the Court’s conclusion. Phan contracted with Agoda for the provision of travel 

accommodations; Agoda’s obligations were only completed by its successfully providing those 

accommodations to Phan at the time of Phan’s travel.

The content of the messages reinforces this conclusion. The text messages read: “Good 

news! Your Agoda booking [number] is confirmed. Manage your booking with our free app 

http://app-agoda.com/GetTheApp.” Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The plain language of 

the text messages is limited to (1) confirming the booking (a purpose no court cited by Phan has

found constitutes advertising or telemarketing); and (2) encouraging Phan to “manage [his] 

booking” via the app. See also Zelenski Decl., Ex. 2 at 10. These two purposes directly related to 

Phan’s transaction with Agoda.3 This language distinguishes this case from Haagen-Dazs, 2017 

WL 4536422, at *1–*2, where the app link was included without an attendant function relevant to 

the transaction, and from Herrick, 216 F. Supp. 3d at 817–18, where the app link in the first 

message was included, in part, to “find more places with no line” and the website link in the 

second message was included without an attendant function relevant to the transaction.

The Court recognizes that this scenario is not directly comparable to those in Aderhold, 

Wick, and Daniel, where the plaintiffs each had to take an additional step before their agreements 

with the defendants were final. However, the focus of each of these cases was on whether the text 

messages were directly germane to the transaction. See Wick, 2016 WL 6460316, at *2 (holding 

purpose of text message was customer service related to transaction); Aderhold I, 2014 WL 

794802, at *9 (concluding text message served limited purpose relevant to transaction); Daniel, 

2015 WL 7454260, at *4 (same); see also In re Rules, 21 FCC Rcd. at 3812 ¶ 49 (concluding that 

a message is not advertising if its “purpose is to facilitate, complete, or confirm a commercial 

transaction”). Here, the context and the content of the messages demonstrate that the purpose of 

the messages was not to advertise or telemarket, but instead was directly cabined to facilitating 

and completing an existing transaction.

 

3

 Because the Court concludes that the messages did not have any marketing or advertising 

component, the dual purpose doctrine is inapposite. 
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Agoda’s inclusion of the link to the app does not change this analysis. Nothing in the 

context or content of the messages indicates that the purpose of the messages was to “encourag[e] 

the purchase . . . of . . . property, goods, or services,” as would be necessary for it to constitute 

telemarketing.4 In fact, these messages are even more innocuous than those in either Daniel, 2015 

WL 7454260, at *1, which encouraged the recipient to click the link to get free points, or 

Mackinnon, 2017 WL 5754308, at *1, which encouraged users to look at specials (as opposed to, 

say, managing their reservations). Ultimately, as in Aderhold II, the messages here “contain[ed] 

no content encouraging purchase of [Agoda] services.” 668 Fed. App’x at 796.

And the inclusion of the link to the app is not enough to warrant holding that these 

messages were advertising under the TCPA. Though the app may fairly be considered a product 

or service of Agoda, the messages simply cannot be said to advertise the commercial availability 

of this product or service under the law. The app is readily analogized to Agoda’s website, as the 

two platforms have substantially similar processes for booking travel and most (if not all) of the 

same functions. See Kelts Decl., Ex. 2 at 28–30. The court in Aderhold I rejected the argument 

that inclusion of a link to a website that contained promotions was sufficient to render the 

messages advertising or telemarketing. 2014 WL 794802, at *9; accord Smith, 228 F. Supp. 3d at 

1067; Reese, 2018 WL 2117241, at *5. The same is true for the app. Even though it contains 

certain promotions, see Zelenski Decl., Ex. 1 at 20–21, the app was included “to facilitate, 

complete, or confirm a commercial transaction,” making the link to it fully germane to the 

transaction. In re Rules, 21 FCC Rcd. at 3812 ¶ 49. Put simply, Agoda was not advertising the 

app’s commercial availability. To hold otherwise would run headlong into the decisions in this 

Circuit and others holding that inclusion of the link to a defendant’s website, without more, does 

not render a message advertising or telemarketing.

For these reasons, the Court holds that the messages at issue here were neither advertising 

 

4

In his opposition, Phan requested that he be given the opportunity to complete certain discovery 

related to the purpose of the messages if the Court were inclined to rule that the messages were 

neither advertising nor telemarketing. See Opp. at 4–5, 13–15. At the hearing on the motion, 

Phan conceded that he had conducted such discovery prior to the hearing, and he withdrew his 

request.
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nor telemarketing as defined by the TCPA. As such, Agoda needed only Phan’s express consent 

prior to sending the messages. There is no dispute that Agoda received such consent because 

Plaintiff voluntarily provided his phone number and agreed to Agoda’s Terms of Use and Privacy 

Policy, which made clear that such messages would be sent. See Aderhold II, 668 Fed. App’x at 

796 (“The [FCC] has determined that ‘persons who knowingly release their phone numbers have 

in effect given their invitation or permission to be called at the number which they have given, 

absent instructions to the contrary.’” (quoting In re Implementing the Tel. Consumer Prot. Act of 

1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992))); Opp. at 2 (acknowledging that

the express prior consent standard is “relatively low” and “requir[es] only that consumers 

‘knowingly’ agree to receive such calls”).

As such, based on the undisputed facts in the record, the messages were neither advertising 

nor telemarketing and Agoda received prior express consent from Phan. Agoda has thus 

successfully demonstrated that it is entitled to judgment as a matter of law on the affirmative 

defense of consent. See City of Pomona, 750 F.3d at 1049; Fed. R. Civ. P. 56(a).

IV. ORDER

For the foregoing reasons, Agoda’s motion for summary judgment is GRANTED on its 

only claim, for violation of the TCPA.

IT IS SO ORDERED.

Dated: December 13, 2018

______________________________________

BETH LABSON FREEMAN

United States District Judge