NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AN PHAN, as an individual and on behalf of No. 19-15015 all others similarly situated, D.C. No. 5:16-cv-07243-BLF Plaintiff-Appellant,

v. MEMORANDUM*

AGODA COMPANY PTE. LTD., a Singapore Private Limited Liability Company,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted March 5, 2020** San Francisco, California

Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.

An Phan appeals the district court’s grant of summary judgment in favor of

Agoda Company Pte. Ltd., in a putative class action Phan brought under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b). Phan claimed

that Agoda sent automated commercial text messages containing advertising or

telemarketing to his cellular phone without his prior express written consent in

violation of the TCPA. Phan had made reservations through the online travel

agency when he received text messages stating, “Good news! Your Agoda

booking [number] is confirmed. Manage your booking with our free app

http://app-agoda.com/GetTheApp.” Reviewing the district court’s grant of

summary judgment de novo, we affirm. Wallis v. Princess Cruises, Inc., 306 F.3d

827, 832 (9th Cir. 2002).

Approaching the matter “with a measure of common sense,” Chesbro v. Best

Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012), the text messages in question

do not constitute “advertising” within the meaning of the TCPA. “Advertisement”

is defined by regulation as “any material advertising the commercial availability or

quality of any property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). Messages

that “facilitate, complete, or confirm a commercial transaction that the recipient

has previously agreed to enter into with the sender are not advertisements.” In re

Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 21 FCC Rcd.

3787, 3812 (2006). By booking travel arrangements through Agoda’s website,

Phan agreed to enter a commercial transaction with Agoda. A text message

confirming that transaction is not advertising.

2 Phan argues that by including a link to download the app, Agoda was

advertising its app as one of its products. Considering the context and content of

the text messages, we do not find that contention persuasive. As the district court

recognized, and as many apps are, Agoda’s app is functionally the same as its

website. Agoda customers could use either Agoda’s website or the app to manage

existing reservations, just as the messages informed Phan. Because the messages’

references to the app indicate a purpose to facilitate a commercial transaction—to

manage existing bookings—they do not “demonstrate a prohibited advertising

purpose.” See Chesbro, 705 F.3d at 918.

Further, Agoda’s messages do not mirror the “dual purpose” calls the FCC

has characterized as unsolicited advertisements. See In Re Rules & Regs.

Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14098

(2003) (describing dual purpose communications as those which “may inquire

about a customer’s satisfaction with a product already purchased, but are motivated

in part by the desire to ultimately sell additional goods or services,” like “calls

from mortgage brokers to their clients notifying them of lower interest rates” or

“calls from phone companies to customers regarding new calling plans”). The

texts at issue here did not reference any other good or service Agoda offered.

Nor do the text messages constitute “telemarketing” because they do not

evince a “purpose of encouraging the purchase or rental of, or investment in,

3 property, goods, or services.” 47 C.F.R. § 64.1200(f)(12). The messages contain

no content encouraging the purchase of any of Agoda’s services; they simply

confirmed a transaction Phan agreed to enter with Agoda. Accordingly, Agoda

was not required to obtain Phan’s express written consent prior to sending the

messages at issue.

AFFIRMED.

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