Antitrust Law Daily Wrap Up, PRIVACY—SDCal: Confirmatory Text Message Sent to Voluntarily-Submitted Cell Phone Number Did Not Violate Telephone Consumer Protection Act, (Nov 2, 2012)

By John W. Arden, J.D., LLM.

A confirmatory text message sent by a bank to a cellular phone number that was voluntarily submitted in an online credit card application did not violate the Telephone Consumer Protection Act (TCPA), according to the federal district court in San Diego (Ryabyshchuck v. CitiBank (South Dakota) N.A.,October 30, 2012, Gonzalez, I.). The bank’s motion for summary judgment on the claim was granted.

On May 14, 2011, Boqdan Ryabyshchuck provided his cellular phone number to Citibank in an online credit card application. When the phone number was entered, a pop-up message displayed the following: “By providing…your mobile number, you agree to receive calls and messages, such as text messages…to your account.”

Two days later, Citibank (via a third-party vendor), using short message service, sent the follow text message to the cellular phone number Ryabyshchuck had provided: “Free Text Mgs: Citi Cards needs to talk with your regarding your recent application. Please call 866 365-8962. To Opt-Out reply STOP.” That same day, Ryabyshchuck replied “STOP.” Citibank then sent the following message: “Free Text Msg” Per your request you will no longer receive text messages from Citi Card Credit Dept. If you have any questions call 866-365-8962.”

Ryabyshchuck filed a complaint on June 6, 2011 and an amended complaint on August 25, 2011. The court denied Citibank’s motion to dismiss, and the parties filed their motions for summary judgment in June 2012. The court heard oral argument on September 21, 2012.

The only issue presented was whether the second text message was actionable under the TCPA, the court stated. The statutory language of the Act has been interpreted to generally “make it unlawful to use an automatic dialing system or artificial or prerecorded voice message, without the prior express consent of the called party…” The purpose and history of the TCPA indicate that Congress was trying to prohibit use of automatic telephone dialing systems in a manner that would be an invasion of privacy. Not every text message or call constitutes an actionable offense, the court observed.

In this case, common sense rendered the second text message inactionable under the TCPA, the court held. The lone message at issue was sent to a number voluntarily provided by the plaintiff. The circumstances displayed some measure of prior consent and dispelled any allusion to the proliferation of intrusive, nuisance calls targeted by the TCPA. A simple, confirmatory response to a plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA, the court concluded.

The case is No. 11-CV-1236-IEG (WVG).

Abbas Kazerounian (Kazerounian Law Group, APC) for Boqdan Ryabyshchuk. Marcos Daniel Sasso (Strook Strook and Lavan) for Citibank (South Dakota) N.A.

Cases: Privacy CaliforniaNews