28 June 2012
The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, prohibits placing calls using an “automatic telephone dialing system” to wireless phone numbers—absent the recipient’s prior consent or an emergency situation—and provides for statutory damages of up to $1,500 per violation. The plaintiffs’ bar has begun filing a wave of class actions asserting that “confirmatory text messages,” which confirm receipt of a recipient’s unsubscribe request, violate the TCPA. Last week, a federal district court in California dismissed one such class action in a decision with implications for any business that communicates with consumers through text messages, whether for telemarketing or informational purposes.
The plaintiff in Ibey v. Taco Bell Corp., No. 12-cv-583 (S.D. Cal.), sent a text message in response to the defendant’s invitation to complete a survey. A short time later, he sent a “STOP” message, requesting that defendant cease sending him text messages. Consistent with the Mobile Marketing Association’s Consumer Best Practices, the defendant sent the plaintiff a message confirming that he had successfully opted out of the program. The plaintiff nevertheless brought a class action alleging that this confirmatory text message violated the TCPA.
The district court granted the defendant’s motion to dismiss, holding that imposing liability “would contravene public policy and the spirit of the [TCPA],” which was aimed at the “prevention of unsolicited telemarketing in a bulk format.” The court explained that because the plaintiff had “voluntarily provided his phone number by sending the initial text message,” the defendant’s “single, confirmatory text message did not constitute unsolicited telemarketing” and therefore was not “an invasion of privacy contemplated by Congress in enacting the TCPA.”
The district court also dismissed the action for a second, independent reason: the plaintiff had failed to adequately plead that the defendant used an “automatic telephone dialing system.” Section 227(a)(1) of the TCPA defines such a system as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The defendant argued that confirmatory text messages were not produced as a result of randomly or sequentially generated numbers, but rather were responses to “STOP” messages from particular phone numbers. The court agreed, noting that the complaint “neither specifies that the device [used to send the confirmatory text message] has the capacity to store or produce telephone numbers nor that the system uses a random or sequential number genera[tor] to text message the numbers.” The court concluded that a mere “allegation that there ‘was no human intervention on the part of the defendant’ does not satisfy or allege the requirements of the statute.”
The Ibey decision is important for any business that uses text messaging to communicate with consumers. As noted above, the pace of filings of TCPA class actions is on the rise, and plaintiffs are increasingly alleging that that standard practice of sending messages to confirm opt-out requests violates the TCPA. Several defendants have settled class actions raising these allegations, and at least one court has denied a motion to dismiss a class action relying on such allegations without squarely confronting the propriety of the plaintiff’s theory that the TCPA forbids confirmatory text messages. In contrast, the Ibey court addressed the issue head on and dismissed the claims. Ibey thus offers companies facing such suits, or concerned about the possibility of similar litigation, support for the argument that confirmatory text messages alone do not violate the TCPA.