Advertising Law Blog

Sanity has prevailed in a Southern California lawsuit concerning the sending of text messages. A lawsuit claiming that the simple acknowledgment of an opt-out request violated the Telephone Consumer Protection Act (TCPA) was dismissed.

Plaintiff Jason Ibey admitted he signed up to receive text messages from Taco Bell, but some time later, he decided he no longer wanted to receive the fast food restaurant's texts, and he sent Taco Bell a text asking it to "STOP". Taco Bell responded with a text saying it had received Ibey's opt-out request and was unsubscribing him from future texts. Nothing else happened. Shockingly, Ibey filed a federal lawsuit, claiming the acknowledgment of the opt-out request was itself an unsolicited text.

Judge Marilyn Huff of the Southern District of California, dismissed the lawsuit, stating Taco Bell's "single, confirmatory text message did not constitute unsolicited telemarketing; Plaintiff had initiated contact with [Taco Bell]. Further, [Taco Bell]'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. 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." The Court granted Taco Bell's motion to dismiss. However, it allowed Ibey thirty days to refile his complaint, so this office will continue to monitor the case for further developments.

TAKE AWAY: Text messages continue to count as telephone calls for purposes of potential "robo-call" violations under the TCPA, but under this recent decision, acknowledging an opt-out request via text message does not provide a consumer with a basis to sue the text's sender.