Twitter was sued on April 28, 2011 in California on the grounds that the company had allegedly violated the Telephone Consumer Protection Act (TCPA) when it sent a confirmatory text to consumers who opted-out of receiving text messages. The plaintiffs, in filing a class complaint on behalf of themselves and others similarly situated, argued that they had opted in on Twitter's website to receive alerts by text. In response to a text that indicated that consumers could text STOP to opt-out, the plaintiffs decided to opt-out using this mechanism. The plaintiffs then received a confirmation text from Twitter indicating that it had processed their request and opted them out. This type of confirmation text is required under the MMA Guidelines, guidelines wireless carriers require companies to follow in order to engage in text message programs on their networks. The TCPA, though, prohibits companies from sending a text message using an "automatic dialing system" to a cell phone number unless the company has first obtained consent. An automatic dialing system is one that has the capability of storing phone numbers to be called using a "random or sequential number generator," and then dialing such numbers. A Ninth Circuit case from 2009 emphasized that the question is not whether or not the system does store and randomly generate the numbers, but instead whether it is capable of doing so. Few cases have analyzed whether or not automatic dialing systems are used in the majority of situations when text messages are sent, including bounce-back confirmations like the one at issue here. Most cases, though, seem to presume that they are. According to this complaint, the plaintiff appears to be making the same presumption, arguing that the confirmation message was sent in violation of TCPA, since (a) the consumer had opted-out of receiving any text messages, (b) no consent existed for the opt-out confirmation text, and (c) consent was (the plaintiff argued) needed to send that message. It is unclear from the facts of this case, however, whether the confirmation messages were sent using automatic dialing systems, thus necessitating consent. The case is still pending.
TIP: Companies that process text message opt-outs as required by the MMA Guidelines may want to explore with their vendors how messages are being sent, and whether they are sent using systems that would qualify as "automatic dialing systems" necessitating consent to send texts. In the absence of clear information from their vendors, companies may wish to lower potential exposure against similar lawsuits by including in their "STOP to stop" messaging an indication that if the consumer selects this method of opting out, they will receive a confirmation text. In order to avoid an allegation that a consumer then is being forced to accept "one last message," companies may also want to include information about alternate opt-out methods. For example, "STOP to stop (we'll txt to confirm) or call _____."