Antitrust Law Daily Wrap Up, PRIVACY—S.D. Fla.: TCPA claim adequately pleaded against text messaging company, (Jan 6, 2014)

By Peter Reap, J.D., LL.M.

Plaintiff Christopher Legg, in his putative class action, adequately pleaded that text messaging company Voice Media Group (“VMG”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, on the basis of VMG’s alleged practice of sending unwanted text messages, the federal district court in Fort Lauderdale has decided (Legg v. Voice Media Group, Inc., January 3, 2014, Cohn, J.) Legg sufficiently pleaded both the use of an automatic dialing system and the revocation of his prior consent to the messages sent by VMG.

Background. VMG operates text alert services which transmit text messages to the cell phones of consumers across the country. Legg alleged that he subscribed to VMG’s services in 2012 and early 2013. In July 2013, however, Legg had second thoughts about receiving text messages from VMG, and sought to unsubscribe from VMG’s services by sending the message “STOP” to VMG.

VMG responded by instructing Legg to reply “STOP ALL,” or “STOP” in combination with a number of other options, to stop receiving text messages. Legg sent the message “STOP ALL” and other similar messages to VMG, but VMG continued to send text messages to Legg through the commencement of this action in September 2013.

VMG moved to dismiss Legg’s complaint on two grounds: (1) Legg failed to plead that VMG used an automatic telephone dialing system, which was a requirement of Legg’s TCPA claim; and (2) Legg could not bring a claim upon text messages from VMG because Legg consented to receive the messages.

Automatic telephone dialing system. One element of a TCPA claim is that the defendant used an automatic telephone dialing system, the court noted. VMG contended that Legg failed to state a claim for a TCPA violation because he did not allege VMG’s use of an automatic telephone dialing system. VMG’s argument boiled down to a conclusory assertion that, because Legg provided his phone number to VMG, Legg’s allegation that VMG used an automatic telephone dialing system was “frivolous,” according to the court.

Whether Legg provided his phone number to VMG was of questionable relevance to his task of pleading the sort of equipment used by VMG. Moreover, Legg stated sufficient facts to plead VMG’s use of an automatic telephone dialing system, the court held.

In his complaint, Legg alleged that VMG operates its text alert services by sending mass text messages via an automatic telephone dialing system known as an “auto-dialer” or “predictive dialer.” VMG sends these mass messages from a “short code,” which is a type of telephone number typically used by companies to communicate with large numbers of consumers, the complaint continued. Legg supported his allegations of VMG’s mass messaging by reference to VMG’s presence in over 50 major metropolitan areas and voluminous consumer complaints about text messages received from VMG’s short code. Legg argued that such mass messaging would be impracticable without the use of an automatic telephone dialing system.

These factual allegations of mass messaging from VMG’s short code that could only be achieved via an automatic telephone dialing system were sufficient to support a reasonable inference that VMG used such a system, the court determined.

Revocation of consent. The TCPA prohibits only calls made without “prior express consent.” VMG argued that, because Legg consented to receive messages by subscribing to VMG’s text alert services, Legg could not state a TCPA claim on the basis of messages from VMG.

Legg did not dispute that he initially consented to receive messages from VMG. Instead, he argued that he revoked his consent, but continued to receive text messages in violation of the Act.

Though the TCPA is silent regarding revocation of consent, courts considering the issue have held that it is possible for consumers seeking to halt calls to their cell phones to revoke prior consent to such calls. The Eleventh Circuit has not addressed precisely what is required to revoke consent under the TCPA once it has been given. Nevertheless, because the TCPA is a consumer protection statute that is remedial in nature, it should be construed liberally in favor of consumers, according to the court.

Legg alleged that VMG instructed him to send the message “STOP ALL” to stop receiving text messages. Legg alleged that he sent the message “STOP ALL” to VMG. In other words, Legg alleged that he took the steps VMG had established for consumers to communicate a desire to stop receiving messages. Taken in a light most favorable to Legg, these facts were sufficient to plead that Legg revoked his consent to receive text messages from VMG, and accordingly that messages postdating the revocation were sent without his consent, the court explained. Further, VMG’s contention that its system’s failure to process Legg’s revocation of consent by the means allegedly provided by VMG rendered the revocation ineffective as a matter of law was without merit.

The case is No. 13-62044-CIV-COHN/SELTZER.

Attorneys: Mark S. Fistos (Farmer, Jaffe,Weissing, Edwards, Fistos & Lehrman, PL) for Christopher Legg. Joseph David Garrity (Garrity Weiss, PA) for Voice Media Group, Inc.

Companies: Voice Media Group, Inc.

Cases: Privacy FloridaNews