- July 31, 2012
- Posted by: Seth Heyman
- Category: Marketing & Advertising Law
Earlier this year, ersatz Mexican food purveryor Taco Bell became another victim of the Telephone Consumer Protection Act’s prohibition against sending unsolicited text messages to consumers. In Ivey v. Taco Bell Corp., the plaintiff filed suit in Federal District Court for the Southern District of California. Unlike similar cases, the plaintiff’s TCPA claim was based not on an initial text, but rather on a second text sent by Taco Bell confirming that the Plaintiff’s opt-out request was received.
The plaintiff initiated the exchange by sending a text message to Taco Bell in response to an invitation to complete a survey. After receiving a text message in response with instructions on how to complete the survey, the plaintiff changed his mind about participating and sent back the word “STOP”. In response to the plaintiff’s “STOP” message, Taco Bell sent a text message confirming that he had opted out of receiving future text messages. The Plaintiff filed suit after receiving this confirmatory message.
Thankfully for Taco Bell and other companies desiring to communicate with their customers via text, the court determined that the TCPA does not impose liability for a single, confirmatory text message.
The court in Ibey held that the plaintiff consented to contact by Taco Bell when he initially texted the short code. Because the plaintiff initiated contact with Taco Bell, Taco Bell’s single text message confirming the plaintiff had opted out of future messaging did not constitute unsolicited telemarketing. In rendering this decision, the court commented 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 bulk format.”
It is interesting to note that Taco Bell was only following the best practices guidelines set forth by the Model Marketing Association, which require opt-out confirmation messages. Many companies have elected not to comply with this aspect of the MMA guidelines because of the threat of potential litigation.