U.S. District Judge Brian R. Martinotti recently granted in part and denied in part a motion to dismiss a Telephone Consumer Protection Act class action lawsuit based on unsolicited text messages sent through an automated dialing system.  The ruling illustrates the nuanced approach taken by some courts in analyzing whether individual text messages can form the basis of a TCPA suit.

In Zemel v. CSC Holdings, LLC, Case No. 18-2340-BRM-DEA, plaintiff Daniel Zemel alleged violations of the TCPA based on three text messages allegedly sent by an automatic dialer on behalf of CSC Holdings.  The first text message was a confirmation to Zemel regarding the creation of an account (Zemel contended that this first message was unsolicited).  The first text message invited him to either respond “STOP” to opt out of receiving messages, or “HELP.”  Zemel responded to the first text message with the message “HELP.”  He then received a second text message with information on how to get live support, to which he responded “STOP.”  The third and final text message asked him to identify the messages he wanted to opt out of.

The Court ruled that Zemel had pled sufficient factual allegations to state a TCPA claim based on the first text message.  Specifically, the claim avoided dismissal by alleging that CSC Holdings used an automatic dialer to send the unsolicited first text message.  The Court, however, dismissed the other TCPA claims arising from the second and third texts.  According to the Court, Zemel consented to the second text by texting “HELP” in response to the first text message.  The district court judge ruled that there is no TCPA violation “when an individual sends a message inviting a responsive text.”  The Court further found that the third text message was merely confirmatory and also not in violation of the TCPA, ruling that “not only is this clearly a confirmatory text, not including any marketing material, but it was the only additional text message sent.”

The Court’s ruling in Zemel is based on a close analysis of individual text messages to determine application of the TCPA.  TCPA defendants would be well-advised to perform similar analyses of individual text messages to avoid potential violations.

Troutman Sanders is counsel in numerous TCPA individual and class actions throughout the country and routinely advises clients on potential TCPA issues.