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CEB Prac. Guide § 2B.05: "Call" Defined -- Text Messages

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FCC Applies Common Sense in TCPA Text-Response Ruling

by Scott J. Hyman |

On November 29, 2012, the FCC issued a Declaratory Ruling that sending a one-time confirmatory text message within five minutes of receipt of a consumer's request that no further text messages be sent does not violate the TCPA or the FCC's rules as long as the sender had prior express consent to send text messages using an automatic telephone dialing system. The FCC… Read More

Southern Wisdom on the TCPA: “[W]e [need not] be blind as judges to what we know as men.” — Providing Cellular Telephone Number Constitutes Consent to Be Called (or Texted) on It

by Scott J. Hyman |

In Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039 (N.D.Ala. 2012), Judge Smith dismissed a TCPA texting class action because Plaintiff had provided her cellular telephone number to Wal-Mart at the time of sale. Plaintiff's putative class action complaint asserts a single cause of action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More

District Court (Wa.) Certifies TCPA Text-Message Advertising Class; Finds Statutory Standing for “Unintended Recipients” Under TCPA

by Scott J. Hyman |

In Agne v. Papa John's Intern., Inc., --- F.R.D. ----, 2012 WL 5473719 (W.D.Wash. 2012), Judge Coughenour certified a TCPA class action against PapaJohn’s pizza for advertising text messages send to thousands of consumers. Plaintiff alleges that Defendants violated state and federal law when they sent her and thousands of others unsolicited text messages advertising Papa John's pizza products.  Papa… Read More

District Court (Cal.) Applies Common Sense Interpretation to TCPA; Grants MSJ to Defendant in Class Action based on Confirming Text Messages

by Scott J. Hyman |

In Ryabyshchuck v. Citibank (South Dakota) N.A., 2012 WL 5379143 (S.D.Cal. 2012), Judge Gonzalez issued a rare decision applying common sense to the TCPA.   Plaintiff filed a class action against the defendant under the TCPA arising out of confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff had provided… Read More

District Court (Cal.) Says TCPA Imposes Vicarious Liability, But Found None on the Facts Stated

by Scott J. Hyman |

In Thomas v. Taco Bell Corp., --- F.Supp.2d ----, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case. Section 227(b)(1)(A)(iii) of the TCPA provides as follows:  It shall be unlawful for any person within the United States, or any person outside the United States… Read More

District Court (Cal.) Dismisses TCPA-Text Message Class Action; Single Text Message Did Not Violate TCPA and Plaintiff Failed to Plead Use of an ATDS

by Scott J. Hyman |

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… Read More

District Court (Fla.) Finds TCPA/Text Class Action Properly Pleaded; Says Need Not Plead that Consumer Was Charged for Text

by Scott J. Hyman |

In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message. The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is… Read More

District Court finds TCPA Claim Properly Pleaded Arising from Text Messages to Cell Phones; Denies Petition to Arbitrate

by Scott J. Hyman |

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

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