Mobile Marketing Association

Waves of class actions have recently alleged that the delivery of an opt-out confirmation text message violates the Telephone Consumer Protection Act (TCPA). Thus, a Federal Communications Commission (“Commission”) Declaratory Ruling finding that a single opt-out confirmation text does not violate the TCPA comes at a crucial time. The Commission’s decision, issued on November 29, 2012, is a welcome relief to companies facing these cases.

The TCPA generally permits the delivery of text messages to consumers after receiving prior express consent to do so. Numerous plaintiffs have taken the position that an opt-out confirmation message violates the TCPA because it is delivered after consent has been revoked. In its ruling, however, the Commission found that a consumer’s prior express consent to receive a text message can be reasonably construed to include consent to receive a final, one-time message confirming that the consumer has revoked such consent. Specifically, delivery of an opt-out confirmation text message does not violate the TCPA provided that it: 1) merely confirms the consumer’s opt-out request and does not include any marketing or promotional information; and 2) is the only message sent to the consumer after receipt of his or her opt-out request. In addition, the Commission explained that if the opt-out confirmation text is sent within five minutes of receipt of the opt-out, it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, “the sender will have to make a showing that such delay was reasonable and the longer this delay, the more difficult it will be to demonstrate that such messages fall within the original prior consent.”

The Commission’s ruling brings the TCPA into harmony with widely followed self-regulatory guidelines issued by the Mobile Marketing Association, which affirmatively recommend that a confirmation text be sent to the subscriber after receiving an opt-out request. The ruling also comes on the heels of, and is consistent with, at least two recent decisions in putative class action cases filed in the Southern District of California. In Ryabyshchuck v. Citibank (South Dakota) N.A., the court held that Citibank did not violate the TCPA by sending a text message confirming that it had received the customer’s opt-out request. The court went as far as to say that “common sense renders the [opt-out] text inactionable under the TCPA.” The court reasoned that the TCPA was intended to shield consumers from the proliferation of intrusive, nuisance communications, and “[s]uch simple, confirmatory responses to plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA.” Likewise, in Ibey v. Taco Bell Corp., the court dismissed a lawsuit alleging that Taco Bell had violated the TCPA by sending an opt-out confirmation message. Noting that the TCPA was enacted to prevent unsolicited and mass communications, the court held, “[to] impose liability … for a single, confirmatory text message would contravene public policy and the spirit of the statute—prevention of unsolicited telemarketing in a bulk format.”

The Commission’s ruling should bring an end to the rash of class actions brought in recent months challenging the legality of confirmatory opt-out messages.

Earlier this year, Fred Weiss, a Pittsburgh Penguins hockey team fan, responded to an offer to receive text messages alerting him to team news and special offers.  Although the terms pertaining to the call-to-action apparently promised Weiss that he would receive no more than three messages per week, he alleges that he received five messages the first week and four the following week.  Instead of simply following the alerts’ unsubscribe instructions, Weiss filed a putative class action lawsuit against the hockey team, alleging that its delivery of more messages than promised violated the federal Telephone Consumer Protection Act (TCPA).

The TCPA generally prohibits the delivery of a text message without the recipient’s express consent.  In his complaint, Weiss has alleged that the delivery of messages in excess of those to which he had agreed (i.e., three per week) was without his express consent, and, for each of those violating messages, he says that he—and his fellow class members—should therefore receive the prescribed statutory damages of at least $500.  Statutory damages per violating message could go up to as much as $1,500 if the Penguins are found to have willfully or knowingly violated the law.

Some may wonder why the Penguins would have made a message frequency promise in the first place.  Widely followed industry guidelines issued by the Mobile Marketing Association (MMA)  state that a marketer should provide certain information to consumers when seeking their consent to receive recurring text messages—including the fact that the consumer’s mobile carrier’s message and data rates apply, as well as how many messages the consumer can expect to receive.  These disclosures give the consumer the information that he or she needs to make an informed decision regarding whether to sign up.  The MMA guidelines do not have the force of law, but they are intended to help ensure that marketers comply with mobile carrier requirements.  Moreover, while a message frequency disclosure is not expressly prescribed by law, the Federal Trade Commission (FTC) or a state regulator could take the position that a failure to tell a consumer, before he or she subscribes, how many messages to expect is an omission of material information and therefore deceptive.  Marketers are therefore advised to make the disclosures imposed by the MMA guidelines.

As the ongoing Penguins litigation highlights, however, making the disclosures is not enough:  the marketer must also take care to abide by its own promises.  A failure to do so may give rise not only to a private cause of action under the TCPA—a very hot area for plaintiffs’ attorneys over the past couple of years—but could also lead to an enforcement action by the FTC or a state regulator, charging that the marketer’s failure to follow its own promises was deceptive.  The bottom line is that companies sending text messages to consumers need to ensure that they are in compliance with their own representations regarding such messages, or they may find themselves in the penalty box.