Cell PhoneIn the recent case of  Ryabyshchuck v. Citibank, the plaintiff sued Citibank after receiving a text message confirming his decision to opt out of receiving  future messages.  In his complaint, the plaintiff stated that he provided Citibank with his cell phone number as part of an application for a credit card.  After receiving a text message from the bank, he opted out of receiving additional messages by replying with the word “STOP.”  Citibank responded to the opt out with a text confirming that his request had been received.   One month later, Ryabyshchuck sent his response to the bank in the form of a lawsuit filed under the Telephone Consumer Protection Act of 1991 (TCPA), which prohibits the transmission of unsolicited telemarketing calls and text messages.

But the U.S. District Court dismissed the suit, finding that the confirmatory text is not grounds for a TCPA lawsuit, stating that the “Imposition of liability under the TCPA for a single, confirmatory text message would constitute an impermissibly ‘absurd and unforeseen result.’”

In coming to this sensible decision, the Court examined 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.”  The judge went on to balance the statute’s purpose with “a measure of common sense” and noted that the plaintiff voluntarily provided his phone number to Citibank without reservation, which meant that the first text was indisputably within the bounds of the law.   The second test sent in response to the opt-out request was nothing more than a simple confirmation.  According to the Court’s decision, this set of circumstances ‘unmistakably’ displayed some measure of prior consent, and had nothing to do with ‘the proliferation of intrusive, nuisance calls’ targeted by the TCPA.  In other words, it was not an invasion of privacy.    A finding to the contrary, the Court concluded, would ‘stretch an inflexible interpretation beyond the realm of reason.”

The Court also noted a similar “common sense interpretation” reached by a California court in a case brought against Taco Bell in June of last year, in which 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.”

Now that two separate courts have reached the same decision on the issue, marketers can feel more confident about sending confirmatory opt-out messages, although the spate of TCPA class actions is not likely to abate.

Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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