On June 20, 2013, the United States District Court for the Southern District of California dismissed a putative TCPA class action that had been filed against Redbox Automated Retail, LLC (“Redbox”).

TCPA Class Action Facts and Analysis

The Redbox plaintiffs alleged that they each received a text message from Redbox, to which they responded “STOP.” One text message response was then sent by Redbox to each of the plaintiffs confirming that they had unsubscribed from the service. The plaintiffs alleged that this text message violated the TCPA because they did not expressly consent to receive it. Redbox filed a motion to dismiss the TCPA class action complaint for failure to state a claim.

In ruling in favor of Redbox and dismissing the TCPA class action, the Southern District of California looked at both the timing of the text message (sent in response to an opt-out request) and the substance of the text message. The Court relied principally on two decisions: the Court’s own ruling in Ibey v. Taco Bell Corp., (“Ibey”), and the FCC’s declaratory ruling on the petition of SoundBite Communications, Inc. (“SoundBite).

The Ibey ruling held that a single, confirmatory text message sent after an opt-out request was received did not violate the language or spirit of the TCPA. The SoundBite ruling further clarified that the sending of a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA as long as the confirmation text does not contain any marketing or promotional information.

Importantly, both SoundBite and Ibey were premised on the consumer’s prior express consent to the initial receipt of text messages. In its decision, the Redbox Court specifically noted that the plaintiffs did not allege one way or another whether they consented to the initial text messages received from Redbox. The only allegation in the TCPA class action complaint was that no consent was given for the final opt-out confirmation text message.

Further, in examining the text messages themselves under the scope of the SoundBite ruling, the Redbox Court held that although they contained a link to the Redbox website, the messages themselves did not, on their face, contain marketing or promotional information. Therefore, the Court held that as a matter of law, the content of the opt-out text messages could not form the basis for liability under the TCPA.

TCPA Class Action Dismissed Without Leave to Amend

Interestingly, the Redbox Court noted that any amendment to the TCPA class action complaint by plaintiffs would be futile and, therefore, rejected the plaintiffs’ request for leave to amend. However, based on the Court’s reliance on the SoundBite and Ivey decisions, the mere addition of the allegation, if applicable, that the plaintiffs did not give Redbox prior express consent to send the initial text messages would, arguably, have salvaged the complaint on failure to state a claim grounds.

The bottom line – According to the Redbox Court, a text message sent in response to an express opt-out request is permissible under the TCPA as long as: (1) that text message does not include marketing or promotional information; and (2) express consent was previously given for the sending of text messages.