A text message confirming that a consumer has opted out of receiving future messages does not violate the Telephone Consumer Protection Act, a second federal court judge has ruled.
According to the suit, Boqdan Ryabyshchuck provided Citibank with his cell phone number as part of an application for a credit card. After he received a text message from the bank, he replied “STOP” to opt out of receiving future messages. Citibank then sent a text confirming his decision to no longer receive messages. Ryabyshchuck filed his TCPA complaint less than one month later.
But U.S. District Court Judge Irma Gonzalez dismissed the suit, finding that the confirmatory text is not actionable under the TCPA. “Imposition of liability under the TCPA for a single, confirmatory text message would constitute an impermissibly ‘absurd and unforeseen result,’” she wrote.
Judge Gonzalez looked to the purpose and history of the statute, which was intended to prohibit the invasion of consumers’ privacy and the “proliferation of intrusive, nuisance calls.” She balanced the statute’s purpose with “a measure of common sense” and noted that the plaintiff voluntarily provided his phone number to Citibank without caveat.
“In the span of a day, plaintiff received a separate, indisputably inactionable text message (the first text), responded with a one-word, opt-out request, and received a concise response simply confirming receipt of the opt-out request (the second text). These circumstances ‘unmistakably’ display some measure of prior consent, and dispel any allusion to ‘the proliferation of intrusive, nuisance calls’ targeted by the TCPA. Such simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of plaintiff’s privacy under the TCPA. A finding to the contrary would ‘stretch an inflexible interpretation beyond the realm of reason,’” Judge Gonzalez ruled.
She also noted a similar decision in nearly identical circumstances. In that suit, brought against Taco Bell, another California federal court judge reached the “same common sense interpretation” of the TCPA, Judge Gonzalez said. In the June decision, U.S. District Court Judge Marilyn L. Huff ruled that “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.”
To read the court’s decision in Ryabyshchuck v. Citibank, click here.
Why it matters: With two courts reaching similar decisions about the issue, it seems as though marketers can breathe a little easier about sending confirmatory opt-out messages. However, plaintiffs continue to file complaints alleging that the messages violate the TCPA, spurred in part by the potential for $1,500 in damages per message. And the issue isn’t over yet: the plaintiff in the Taco Bell case has already filed an appeal of Judge Huff’s decision to the Ninth Circuit.