Corporations that communicate with consumers via text message are advised to include an opt-out in each message so that consumers can remove their number from the applicable lists. A recently filed case, however, provides a warning to businesses that utilizing text messaging to communicate with current or prospective customers can have unintended consequences.

According to a complaint filed with the US District Court for the Southern District of California, Citibank, allegedly in response to a consumer’s credit card application, sent a text message to the applicant’s cell phone requesting that he contact Citibank’s credit card division. In response, the applicant replied “STOP” to opt-out of future text messages. Citibank then responded to the opt-out request via an additional text message confirming that the applicant would no longer receive text alerts. As a result, the applicant has now sued Citibank, alleging that both the original text and the confirmatory text violate the Telephone Consumer Protection Act (TCPA).

The TCPA governs the conduct of telemarketers by restricting their use of various technologies—including automatic dialing systems, artificial or prerecorded voice messaging, and SMS text messaging—in sending unsolicited advertisements. Specifically, the TCPA makes it unlawful for a telemarketer to make any “call” using any automatic dialing system to any cellular phone without prior express consent by the recipient. Case law has previously established that a text message is a “call” within the meaning of the TCPA. The applicant, now the plaintiff in the present suit, has claimed that Citibank violated the TCPA’s prohibition on unsolicited “calls” to cellular devices by sending him an SMS text message and—after he had affirmatively opted out by replying “STOP”—an additional follow-up message confirming his opt-out.

In filing a motion to dismiss the plaintiff’s complaint, Citibank argued that the plaintiff had, in fact, consented to the messages when he provided his cell phone phone number on a credit application. The court dismissed the motion, holding that the burden of proving consent to a telemarketer’s solicitation lies with the defendant, and, therefore, that the plaintiff’s complaint, which alleged that Citibank had sent text messages to the plaintiff without his consent in violation of the TCPA, had stated a valid claim to relief.

This case provides a vivid reminder that any use of text messaging to communicate with current or prospective customers should be reviewed by appropriate legal counsel. Although Citibank may have believed that confirming a consumer’s request to opt-out of text message communications was important from a customer experience perspective, it may have unwittingly walked itself into a legal minefield.

For more information, please contact Anthony V. Lupo, Sarah L. Bruno, Matthew R. Mills or Anthony D. Peluso in the Advertising, Sweepstakes and Contests Law practice group.