TCPALand is filled with people trying to game the system, especially when it comes to text message TCPA cases. You’ve got the classic opt-out evader, as we just saw in the Edible Arrangements case. But sometimes, the play involves the “opt-in invader” (see what I did there?).
Enter Plaintiff Renee Reese who claimed Defendant Marketron Broadcast Solutions violated the TCPA when it sent her a marketing text message about a concert. Plaintiff had heard an ad on the radio inviting her to text “joyride” to enter a contest for tickets to a Tinashe concert– an artist I’ve never heard of probably because I’m old and lame and only listen to 90’s music (seriously, I had to Google her). In response, Defendant sent a text confirming Plaintiff had been entered to win those concert tickets.
Plaintiff claimed that this text violated the TCPA because it was a solicitation that required her prior express written consent (which she didn’t provide), and because it did not contain opt-out instructions. The Court made quick work of both claims in granting the Defendant’s motion to dismiss.
First, it held that the text message was not a solicitation, but per FCC rules, a permissible one-time informational text sent in direct response to a consumer’s inquiry. Second, the Court held that Plaintiff had provided the requisite express consent by texting “joyride” to Defendant. The text she received in response was therefore perfectly legal because it was “clearly related to the purpose for which plaintiff sent her initial message.”
Finally, the court held that a text message is not a prerecorded message. Thus, because the FCC’s opt-out instruction rules only apply to prerecorded messages, Defendant was not required to include opt-out instructions in its texts. Having said that, it’s still good practice to provide opt out instructions (i.e. text “STOP”), as illustrated by opt-out evader cases like Edible Arrangements.
This TCPA “joyride” sure ended quickly for Plaintiff and her lawyers. And Plaintiff didn’t even get to walk away with those Tinashe tickets.