New Jersey’s federal trial court ruled in Zemel v. CSC Holdings, LLC that “when an individual sends a message inviting a responsive text, there is no TCPA violation” when you respond. That sounds perfectly reasonable, but the outcome was not a foregone conclusion.
In this case, Zemel claims he received an unsolicited text message from short code 60891 advising him that his mobile number had been “added for Optimum ID joan2325.” He replied “Help” to that text, and received a reply advising him that he could visit optimum.net/support for help. He then texted “Stop,” in response to which he received this final text: “Let us know which messages you wish to stop: Service Alerts-STOP SRVC, Appointment Alerts-STOP APPT.” He linked the short code to CSC Holdings and suit it in a putative class action, claiming that each of the 3 SMS violated the TCPA.
The court engaged in a (in my humble opinion) a perfunctory review of CSC’s challenge to Zemel’s allegation that the messages in question were sent with an autodialer. Without even discussing the functionality issues central to the Third Circuit’s Dominguez v. Yahoo decision, the court evidently found the fact that the message was sent with a short code dispositive. I’m unaware of any other opinion to that effect (a handful of cases have noted the short code issue as one factor among many), and the personalized nature of the initial text message would suggest that there was a high level of customization, and thus human intervention, in this campaign’s structure.
But the court made amends by dismissing Zemel’s complaint as it related to the two messages he received after texting “help” and “stop”, even if the initial message was allegedly unsolicited. As noted above, the court had no problem rejecting the claim regarding the “help” response. He texted “help” and got the help link he asked for. That is, CSC had prior express consent to send that message. And it also had consent to send him the confirmatory opt-out in response to his “Stop” SMS, even if the message prompted Zemel for clarification (which he evidently didn’t supply, and CSC rightly ended the conversation there). As the court noted, “Not only is this clearly a confirmatory text, not including any marketing material, but it was the only additional text message sent.”
This is another good case for SMS marketers with well-designed campaigns. Until the reassigned numbers database or safe harbor is clarified, there may be some nuisance-value level of claims in “fat finger” types of cases like this. But a campaign architected around consent, and sensible replies to requests for help or to stop, should not expose the brand to the realistic specter of a TCPA class being certified.
By Joe Bowser
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McLean, VA 22102