Text Message "Opt-Out" Case Dismissed

A recent dismissal of a plaintiff’s class action involving text messages sent to confirm the consumer has opted out should be welcome news to companies that engage in text message marketing.  Currently, the Mobile Marketing Association Guidelines require companies to send a single, final text message confirming the consumer has opted out when a “STOP” or similar message is received.  However, the practice has become the subject of multiple class action lawsuits.  The decision by the U.S. District Court for the Southern District of California in Ibey v. Taco Bell Corp., No. 12-CV-0583-H(WVG), 2012 WL 2401972 (S.D. Cal. June 18, 2012) is the first step in resolving an important issue for marketers regarding whether to confirm text message opt-outs. In this case, plaintiff agreed that he originally consented to receive text messages from Taco Bell. Later, the plaintiff changed his mind and texted “STOP,” at which point he received a single text message that confirmed he had opted out. Plaintiff brought suit, alleging that the confirmation text message he received was sent in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1) (“TCPA”), on the grounds that it “constituted an unsolicited advertisement placed via an automatic telephone dialing system.” In essence, plaintiff argued that because he had opted out, there was no consent to send the text and therefore the confirmation violated the TCPA.

Taco Bell argued that the TCPA and its legislative history indicate that the statute is not intended to impose liability for a single, opt-out confirmation message. The Court agreed, concluding that “the TCPA does not impose liability for a single, confirmatory text message.” The Court found that the confirmation message was not in fact “unsolicited telemarketing.” The Court held:

Defendant’s sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA. To impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute—prevention of unsolicited telemarketing in a bulk format.

The Court also found that the complaint failed to sufficiently plead the use of an automatic telephone dialing system as defined by the TCPA.

The Court granted Plaintiff 30 days to amend the complaint to sufficiently state a claim, although it appears difficult to do so given the Court’s findings with regard to Taco Bell sending a single, text message confirming Plaintiff’s opt-out.