In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS. Plaintiff filed a class action based on the following facts:
Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete a survey about Taco Bell, and Plaintiff voluntarily sent a text message from his mobile phone to the number 93138. (Doc. No. 13 ¶ 9.) In response to his text message, Plaintiff alleges he received a text message providing instructions on how to complete the survey. ( Id. ¶ 13.) Plaintiff alleges that shortly thereafter, he had second thoughts about continuing the survey and decided that he wished to cease communications with Taco Bell. ( Id. ¶ 13.) To cease communications, Plaintiff allegedly sent the word “STOP” to the same number, 91318. In response to Plaintiff’s STOP message, Plaintiff alleges that Taco Bell sent Plaintiff a text message confirming that he had opted out of receiving text message notifications. ( Id. ¶ 14.) Plaintiff alleges that the confirmation text message constituted an unsolicited text-message advertisement and was placed via an “automatic telephone dialing system” (“ATDS”), prohibited by the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1). ( Id. ¶ 19.) In response, Defendant filed a motion to dismiss or, in the alternative, for summary judgment. (Doc. No. 15.)
Judge Huff found that liability for a single confirmatory text message was not within the Congressional purpose of the TCPA.
Defendant argues that the legislative history of the TCPA indicates that the statute cannot be read to impose liability for a single, confirmatory opt-out message. (Doc. No. 15.) The Court agrees. The Court concludes that the TCPA does not impose liability for a single, confirmatory text message. ¶ The TCPA’s statutory and legislative history emphasize that the statute’s purpose is to prevent unsolicited automated telemarketing and bulk communications. S. Rep. 102–178, at 4–5 (1991), as reprinted in 1991 U.S.C.C.A.N.1968, 1972. Further, the Ninth Circuit has explained that “the purpose and history of the TCPA indicate that Congress was trying to prohibit use of ATDSs in a manner that would be an invasion of privacy.” Satterfield, 569 F.3d at 954. ¶ Here, Plaintiff expressly consented to contact by Defendant when he initially texted 91318 to Defendant. (Doc. No. 13 ¶ 9.) When Plaintiff decided he no longer wanted to receive in text communications, Plaintiff allegedly notified Defendant that he wished to stop communications, and Defendant allegedly confirmed its receipt of the message and Plaintiff’s removal from Defendant’s text-message communication list. ( Id. ¶¶ 13–14.) Defendant’s single, confirmatory text message did not constitute unsolicited telemarketing; Plaintiff had initiated contact with Defendant. Further, Defendant’s sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA. To 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. Accordingly, the Court grants Defendant’s motion to dismiss and provides Plaintiff 30 days leave to amend to correct the deficiencies of the complaint.
Judge Huff found Plaintiff’s plea of an ATDS inadequate:
In Plaintiff’s complaint, he alleges that the unsolicited text message advertisement was placed via an “automatic telephone dialing system” (“ATDS”), as prohibited by the TCPA. (Doc. No. 13.) Defendant challenges the sufficiency of the complaint by asserting that Plaintiff provided only a conclusory allegation as to Defendant’s use of an ATDS to send text messages. (Doc. No. 15.) ¶ The Court concludes that Plaintiff has not sufficiently pled the use of an ATDS. To constitute an ATDS under the statute, the equipment must have the capacity to store or produce telephone numbers to be sent text messages and use a random or sequential number generator to text the numbers. 47 U.S.C. § 227(a)(1). In a conclusory manner, Plaintiff alleges that Defendant used an ATDS. (Doc. No. 13 ¶ 19.) Nevertheless, Plaintiff neither specifies that the device has the capacity to store or produce telephone numbers nor that the system uses a random or sequential number general to text message the numbers. ( See Doc. No. 13.) To the contrary, it appears to the Court that Plaintiff alleges that Defendant sent an immediate reply directly to Plaintiff. ( Id. ¶ ¶ 18–19.) According to Plaintiff’s allegations, the text message did not appear to be random but in direct response to Plaintiff’s message. ( See id.) Further, Plaintiff’s allegation that there “was no human intervention on the part of the Defendant” does not satisfy or allege the requirements of the statute. ( See id. ¶ 18.) On these facts, it appears Defendant could be entitled to summary judgment because there does not appear to be a genuine dispute of material fact. Nevertheless, the Court declines to grant summary judgment at this time. Instead, the Court concludes that Plaintiff’s complaint fails to sufficiently plead the use of an ATDS within the meaning of the TCPA. Therefore, the Court grants Defendant’s motion to dismiss and provides Plaintiff 30 days leave to amend to correct the deficiencies of the complaint.
Plaintiff filed a Motion for Reconsideration, and was heard on August 6. Taco Bell’s Opposition is here.