I recently covered a federal appeals court decision that threw cold water on a professional TCPA plaintiff’s argument that he didn’t consent to receive messages in response to his texting anything but “STOP” to allegedly opt out of an SMS campaign. This week another federal court, New Jersey’s federal trial court, ruled in the same vein in Rando v. Edible Arrangements. This ruling gives more momentum to the trend we’ve been discussing that courts are simply getting fed up with plaintiffs who assiduously avoid opting out of SMS campaigns in the easiest possible fashion—by texting “STOP”—and then sue for the text messages they get in response.
In this case, Ms. Rando admits she signed up for an Edible Arrangements marketing campaign, but claims she revoked her consent after responding to certain messages with the following types of responses that, while perfectly polite, failed to comply with the simple instruction to just text “STOP” to cancel the campaign:
- “Take my contact info off please”
- “I want to confirm that I have been removed from your contacts”
- “I asked to be removed from this service a few times. Stop the messages.”
- “Again I want to stop the service thank you.”
- “Thank you. I’d like my contact info to be removed.”
- “Checking in today to see if my information is removed.”
Consistent with CTIA guidelines, every message Edible Arrangements sent her ended with the instruction “Reply … STOP to cancel.” The question for the court, then, was “the legal effect of replying to an unwanted commercial text message using language that would, if read by a human being, clearly indicate a desire to revoke consent to receive text messages, but not using the required (and clearly stated to the consumer) language that the computerized texting service would recognize as effecting such a revocation.” Put differently, could the merchant designate the exclusive means of opting out, or was this natural-language response a reasonable means of opting out under the TCPA? (Recall that the FCC’s standard for revoking consent, which the DC Circuit just upheld, is that consumers may use any reasonable method, including orally or in writing.)
The court, synthesizing what it fairly characterized as ambiguous FCC positions on consent revocation, rejected the plaintiff’s argument that it violates the TCPA when “a caller designated an exclusive means of revoking consent.” To state a claim, the court ruled, the plaintiff must also allege “that the designated exclusive means for revoking consent made it difficult or impossible to effectuate her actually-attempted revocation, and that [plaintiff’s] method of revocation was reasonable.” Going one further, in consent-revocation cases, the court held that plaintiffs must “allege that Defendant continued to contact [plaintiff] after she revoked her consent to be contacted,” and must also “put forth factual allegations that would tend to show that her method of revocation was reasonable, given the totality of the circumstances.”
The court allowed for the possibility that there may be circumstances where a consumer could “text back a non-compliant text message in an attempt at revocation that was, despite that non-compliance, reasonable,” citing closer calls such as “stop [lower case],” “STOP. [with a period],” or “STOP STOP” [intentional repetition].”
But that wasn’t this case. The court, looking at all the circumstances, found that “a reasonable person seeking to revoke consent would have tried, at least at some point during the back-and-forth, simply replying ‘STOP’ to cancel—as instructed, rather than ignoring Defendant’s revocation method and sending ten long text messages to that effect, most of which did not include the work ‘stop’ at all.” Since the plaintiff did not allege that she used a reasonable means for revoking consent, the court dismissed her case.
These opinions add to the growing weight of authority that SMS campaigns that consistently remind consumers to “Reply STOP to cancel” provide consumers with the most reasonable, and arguably the only reasonable, method for opting out.