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By Robert D. Forbes

Editor's Note: The legal requirements and privacy considerations related to e-mail and text message campaigns will be explored in additional detail during the Practice Privacy Series Marketing and Advertising tract in New York on October 30.

In March of this year, Taco Bell Corp. joined the ranks of companies that have been sued under the Telephone Consumer Protection Act (TCPA), not for sending an unsolicited text message to a consumer in the first instance but for sending a confirmatory message when a consumer chose to opt out of receiving future messages. Recently, the federal district court in Ibey v. Taco Bell Corp., 12-cv-0583 (HVG) (S.D. Cal. June 18, 2012), concluded “that the TCPA does not impose liability for a single, confirmatory text message.”

The plaintiff alleged that he responded to an invitation to complete a survey about Taco Bell by voluntarily sending a text message to a short code provided by Taco Bell. After receiving a text message in response with instructions on how to complete the survey, the plaintiff had second thoughts about participating and sent the word “STOP” to the same short code. In response to the plaintiff’s “STOP” message, the plaintiff alleged that Taco Bell sent a text message confirming that he had opted out of receiving future text messages.

The TCPA makes it unlawful for any person in the United States to make any call—other than a call made for emergency purposes—using an automatic telephone dialing system or an artificial or prerecorded voice without the prior consent of the person being called. The Ninth Circuit has held that a text message is a call within the meaning of the TCPA.

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, the court concluded, commenting, “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.”

The Ibey court declined to take judicial notice of the Mobile Marketing Association (MMA)  U.S. Consumer Best Practices, 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. The issue currently is before the Federal Communications Commission pursuant to a Petition for Expedited Declaratory Ruling filed by Soundbite Communications, Inc. Soundbite’s Petition points out the MMA Best Practices, arguing, among other things, that as the court in Ibey ruled, the sending of a confirmatory message is consistent with good public policy. In March 2012, the commission sought public comment on the petition but has not yet ruled on it.

Only one other court appears to have ruled on this issue. In a relatively recent case, also out of the Southern District of California, which the Ibey court did not cite, the court denied a motion to dismiss a complaint alleging a similar claim under the TCPA. In Ryabyshchuk v. Citibank (South Dakota) N.A., 11-cv-1236 (IEG) (WVGx) (S.D. Cal. Nov. 28, 2011), the plaintiff alleged that he contacted Citibank to inquire about a credit card and later received a promotional text, to which he replied “STOP.” The plaintiff alleged he then received a confirmatory opt-out message from Citibank. The court denied Citibank’s motion to dismiss, holding that the complaint adequately alleged that both the initial text message and confirmatory opt-out messages were unsolicited and therefore sent without prior express consent. That case is currently pending and in the midst of briefing on cross-motions for summary judgment.

On August 1, the court in Ibey denied the plaintiff's motion for reconsideration. The plaintiff has appealed to the Ninth Circuit Court of Appeals.

Robert D. Forbes is an associate in the Litigation Department and has experience in a variety of complex litigation matters in both federal and state courts involving contract, antitrust, copyright, trademark, First Amendment, defamation, Internet privacy, director/officer liability and general commercial disputes. A version of this report was first published in Proskauer’s Privacy Law Blog.

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