On June 18, 2012, a federal court in the Southern District of California dismissed the initial complaint of a plaintiff seeking to establish a class action for damages under the Telephone Consumer Protection Act (TCPA) for a confirmatory, opt-out text message sent by Taco Bell in response to the plaintiff’s “STOP” text message. The court concluded that the TCPA does not create liability for a “single, confirmatory text message.”

Plaintiff alleged that he sent an initial text message to Taco Bell’s short code to engage in a survey, but later decided to end the communication. He texted “STOP” and shortly thereafter Taco Bell sent “a text message confirming that he had opted out of receiving text message notifications.” Plaintiff alleged this confirmatory text message violated the TCPA.

The court disagreed. First, the court found that the purpose of the TCPA “is to prevent unsolicited automated telemarketing and bulk communications.” Second, emphasizing Plaintiff’s initial contact with Taco Bell was express consent to communications from Taco Bell, the court found that the single, confirmatory message was not unsolicited telemarketing, nor was it “invasion of privacy contemplated by Congress in enacting the TCPA.”

The court also found that Plaintiff’s conclusory allegations about Taco Bell’s use of an “automatic telephone dialing system” (ATDS), required to state a claim under the TCPA, were insufficient. An ATDS “must have the capacity to store or produce telephone numbers to be sent text messages and use a random or sequential number generator to text the numbers.” Citing 47 U.S.C. § 227(a)(1). In contrast to this requirement, Plaintiff’s allegations were about a single message not sent at random but in “direct response to Plaintiff’s message.” Further, the court concluded that the absence of human intervention alleged by Plaintiff was insufficient to satisfy the ATDS requirement.

On both issues, the court gave Plaintiff 30 days to file an amended complaint, but it would appear Plaintiff would have a difficult time revising the complaint given the interpretation of the law advanced by the court. The court repeatedly emphasized that Plaintiff provided initial express consent to communications. Most commentators advanced these same arguments at the Federal Communications Commission (FCC), in response to the FCC’s earlier request for comment on this issue. See April 2, 2012 Arent Fox Client Alert: FCC Requests Comment on Confirmatory, Opt-Out Text Messages. The FCC has not yet taken action on the issue.

The case is Ibey v. Taco Bell Corp., No. 3:12-cv-00583 (S.D.Cal.). The order is available here.