Opt-Out Text Messages Found Not to Violate Telephone Consumer Protection Act

In Ryabyshchuck v. Citibank N.A., S. D. Cal., No. 11-1236, 10/30/12, the Federal District Court ruled that Citibank’s sending of a text message to a customer confirming that it received the customer’s message requesting to opt out of additional text messages did not violate the Federal Telephone Consumer Protection Act (the “TCPA”).

The TCPA makes it unlawful to send unsolicited, auto-dialed calls to cellular telephones.  See 47 U.S.C. §227(b)(1)(A)(ii).  Text messages are considered “calls” covered by the statute under Satterfield v. Simon & Schuster, Inc., 569 F. 3d 946 (9th Cir. 2009).  Courts disagree about whether text messages sent to consumers confirming that the sender will send the consumer no further text messages violate the statute.  This issue is currently under review by the Federal Communications Commission.

In Ryabyshchuck, Judge Irma E. Gonzalez held that “common sense renders the second text inactionable under the TCPA,” deferring to the statement in Henrique v. U.S. Marshal, 653 F. 2d 1317 (9th Cir. 1981), that courts must recognize common sense practicalities of situations presented.  The statute was intended to shield consumers from the proliferation of intrusive nuisance calls, the court held.  A “simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA.”

The court relied upon its above analysis to grant summary judgment to Citibank following a prior denial by the court of Citibank’s motion to dismiss.

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