In a pair of lawsuits filed against Twitter, Inc. and American Express Centurion Bank, plaintiffs in a California federal court are seeking class-action status to assert claims that the defendants violated the Telephone Consumer Protection Act (“TCPA”) by sending each plaintiff a single text message to confirm that they had processed the plaintiff’s request to opt-out of receiving further text messages. This litigation highlights a potential vulnerability in the mobile marketing programs of companies that have not fully considered how telemarketing law should inform their implementation of the Mobile Marketing Association’s U.S. Consumer Best Practices (the “MMA’s Best Practices”), the authoritative compilation of policies enforced by the major wireless carriers.
The alleged facts in the two cases are very similar. In each case, “Plaintiffs activated one or more options in their . . . accounts, online, to receive notifications concerning their account via text messages.” As requested, the defendants then sent various text messages to the plaintiffs. Later, each plaintiff sent the reply “stop” in response to the most recent text message they received. Following industry practice, the defendants each responded by sending a single text message to confirm that the opt-out had been processed, and no further messages were sent.
The lawsuits arrived within days. The plaintiffs argue that the defendants violated the following provision of the TCPA:
“It shall be unlawful for any person . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call.”
Under Ninth Circuit case law and Federal Communications Commission precedent, the word “call” in that provision includes text messages, and the term “automatic telephone dialing system” encompasses some types of text messaging equipment. Plaintiffs tacitly acknowledge that they provided the requisite “prior express consent” to receive text messages when they opted in to the defendants’ text messaging programs, but they argue that this consent was revoked when they sent the “stop” message in response to one of the program text messages. Plaintiffs argue that the defendants’ final message, confirming the opt-out, violated the TCPA because it was sent without the plaintiffs’ prior express consent.
This argument has some strength. The “stop” command is recognized as the standard, universal opt-out command by the MMA’s Best Practices. Under the MMA’s Best Practices (which are not mentioned in the lawsuits), “[a] subscriber must be able to stop participating and receiving messages from any program by sending STOP to the short code used for that program.” The MMA’s Best Practices specify how the typical mobile program must respond to a “stop” request: “When the user is subscribed to a recurring program, [a text] message confirming the opt-out should be sent to the subscriber.”
How, then, can a business comply with both the TCPA (which restricts the automated sending of text messages without the recipient’s prior express consent) and the MMA’s Best Practices (which mandates the automated sending of a text message to confirm an opt-out request)? One option may be to obtain the consumer’s express consent to the opt-out confirmation at the time the consumer opts in to the program. When properly executed, this technique could transform the consumer’s “stop” command from a revocation of all consent to a request for confirmation of the opt-out. This and similar strategies implement the most important requirement of the MMA’s Best Practices: “At all times, programs must be in accordance with applicable federal and state laws, rules and regulations.”