On June 18, 2012, a U.S. District Court judge in California dismissed a class action complaint against Taco Bell, holding that a single, confirmatory text does not violate the Telephone Consumer Protection Act (TCPA).
The named plaintiff, Jason Ibey, provided Taco Bell with his cellphone number to take part in a survey in February of this year. Shortly thereafter, Ibey allegedly changed his mind and sent the word “STOP” to cease communications with the company and Taco Bell responded by sending a text message to confirm that he had opted out of receiving text message notifications.
The following month, Ibey sued Taco Bell for violating the TCPA, alleging that the confirmatory text message constituted an “unsolicited text message” placed via an automatic telephonic dialing system in violation of the TCPA.
U.S. District Court Judge Marilyn Huff rejected Ibey’s claims, granting Taco Bell’s motion to dismiss and giving plaintiff 30 days to amend the complaint. In granting the motion to dismiss, the court held, “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.” In reaching this decision, Judge Huff considered the legislative history of the TCPA and concluded that the purpose of the statute is to prevent unsolicited automated telemarketing and bulk communications. Therefore, the court held the defendant’s actions do “not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA,” citing the fact that the plaintiff expressly consented to contact by Taco Bell and even initiated contact with the company.
To read the court’s order in Ibey v. Taco Bell Corp., click here.
Why it matters: The motion to dismiss is not the final word in this case, as plaintiffs have already filed a motion for reconsideration. Nevertheless, companies should remember that although text messages are a major part of marketing campaigns, they expose companies to potential liabilities. Facebook, Myspace and Twitter were hit with similar lawsuits over the past year, all of which were withdrawn. Because some jurisdictions, including the Ninth Circuit, consider text messages to fall within the jurisdiction of the TCPA, similar suits are likely. Yet, for the moment, companies can rest assured that a single text sent to confirm a consumer’s decision to opt out of receiving text messages will not constitute an unsolicited ad under the TCPA.