TCPA Class Action on Opt-Out Confirmation Text Messages Dismissed


By: Matt Foree
A U.S. District Court in California recently dismissed a putative class action under the Telephone Consumer Protection Act (TCPA).  See Holt v. Redbox Automated Retail, LLC, Case No. 11cv3046 (S.D. Cal. 2013).  The matter concerned Defendant Redbox Automated Retail, LLC (Redbox) and its post opt-out confirmation text messages.  The original plaintiff in the matter, Kathleen Holt, who filed the complaint individually and on behalf of all others similarly situated, responded to an unsolicited text message from Redbox with an opt-out text message.  In response to Holt’s text, Redbox sent another text message confirming the opt-out and supplying a link to a website for more information.
In response to the plaintiffs’ putative class action Complaint for violations of the TCPA, Redbox filed a motion to dismiss, raising several arguments, including a challenge to the constitutionality of the TCPA.  Among other things, Redbox argued that prohibiting the confirmation messages would be a restriction on noncommercial speech inconsistent with Congress’s intent, which was to prohibit commercial telemarketing practices considered to be a risk to public safety and an invasion of privacy.  As a result of the constitutional challenge, the United States intervened in support of the constitutionality of the TCPA.
Redbox also relied on the Federal Communications Commission’s (FCC) ruling in the SoundBite Communications, Inc. (SoundBite) matter, which concerned a similar issue as in the Redbox case.  In the SoundBite matter, the FCC held that sending a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the FCC’s rules as long as the confirmation text has certain characteristics, including that it merely confirm the opt-out request and not include marketing or promotional information and is the only additional message sent to the consumer after receipt of the opt-out request.  The SoundBite declaratory ruling is available here.
In analyzing Redbox’s motion to dismiss, the court determined that the plaintiffs failed to state a claim as a matter of law.  In so holding, the court relied on previous precedent, Ibey v. Taco Bell Corp., No. 12-cv-0583-H, 2012 WL 2401972 (S.D. Cal. June 18, 2012), in which the U.S. District Court for the Southern District of California found no violation for a confirming text based solely on its interpretation of the TCPA.  Specifically, that court held that “the TCPA does not impose liability for a single, confirmatory text message,” noting the purpose of the TCPA to “prevent unsolicited automated telemarking and bulk communications.”  Id. at 3.  The Ibey court also held that “[t]o 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.”  Id.  The court relied on Ibey to grant Redbox’s motion to dismiss, reasoning that the TCPA does not impose liability for the single, confirmatory text messages at issue, such that the plaintiffs failed to state a claim as a matter of law.
Additionally, the court addressed the plaintiffs’ argument that Redbox’s confirming texts include forbidden marketing and promotional information in the form of links to Redbox’s website.  The court, however, declined to adopt this “‘look through’ approach to liability under the TCPA,” opting instead to view the texts themselves to determine that they did not contain marketing or promotional information for products or services.  As a result, the court held that the texts do not contravene SoundBite and could not form the basis for liability under the TCPA.
Significantly, a large portion of Redbox’s motion to dismiss was devoted to a constitutional challenge to the TCPA.  In response to Redbox’s constitutional challenge, the United States intervened to file a brief in support of the constitutionality of the TCPA.  As such, the stage was set for the court to add to the developing case law regarding such challenges by addressing these arguments.  By relying on SoundBite and Ibey, however, the court avoided analyzing Redbox’s constitutional arguments.