Over the past few years, there has been an increase in the number of lawsuits involving text message campaigns. Although the first lawsuits typically involved unsolicited messages, now plaintiffs’ lawyers are also targeting legitimate campaigns. For example, as we posted last year, a consumer filed a lawsuit when a company sent him a message confirming they had processed his opt-out request. Similar suits followed. Fortunately, a federal court in California recently held that a text message confirming a consumer’s opt-out request is not unlawful.
In this case, the plaintiff agreed to receive text messages from Taco Bell, and later opted-out. Taco Bell then sent the plaintiff a text message confirming his request. The plaintiff argued that the confirmation was sent without his consent and, therefore, in violation of the Telephone Consumer Protection Act. The court disagreed, noting: “Defendant’s sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA.” A contrary holding “would contravene public policy and the spirit of the statute.”
The court gave plaintiff 30 days to file an amended complaint, but it’s hard to imagine how the plaintiff will be able to overcome the court’s objections on this issue. This decision is good news for all mobile marketers, especially because the Mobile Marketing Association’s Consumer Best Practices Guidelines specifically require companies to send a confirmation message when consumers opt-out.