In Pietzak v. Microsoft Corp. et al , No. 2:15-cv-05527 (C.D. Ca. Nov. 17, 2015), the Central District of California recently dismissed, with prejudice, a class action Complaint against Microsoft for alleged TCPA violations based on advertising texts sent to Plaintiffs’ mobile phones. The texts from Microsoft responded to initiating texts from Plaintiffs containing specific keywords (e.g. “gamer”) found in company promotions Microsoft had posted on various social media sites. Plaintiffs admitted to having sent the initiating texts, but claimed Microsoft had lured them to provide their mobile phone numbers in response to sweepstakes and specific discount offers, without disclosing that as a result, and that they would be automatically enrolled in a text message campaign where they would receive up to ten advertisements a month.
The Court held that even assuming these allegations to be true, Plaintiffs had failed to state a viable TCPA claim because “Plaintiffs not only unequivocally expressed their interest in learning more about Microsoft’s promotional offers, but they also provided their consent to receive that information through text messaging.” Id. , at 3. The decision is notable because it is one of the first opinions written after the effective date of the FCC’s rule change requiring “prior express writtenconsent.” In re Rules and Reg’s Implementing the Tel. Consumer Prot. Act of 1991 , 27 F.C.C.R. 1830, 1839, 1856-67 (Feb. 15, 2012) (“2012 TCPA Order”) (emphasis added). Despite the rule change, the Court continued to rely, at least in part, upon a prior 1992 FCC ruling (and supporting cases) holding that plaintiffs who provide companies with their telephone numbers, and then receive responsive texts, cannot be heard to complain. According to Judge Manuel L. Real, “[t]his case is no different than those before it.” Pietzak , No. 2:15-cv-05527, at 3. This decision supports a future defense in TCPA text message cases based on “prior express written consent” where plaintiffs have opted-in to text messaging campaigns by texting specific keywords to the business from their mobile phones.