Recently, the U.S. Court of Appeals for the Second Circuit ruled that a text message did not violate the Telephone Consumer Protection Act (TCPA) and affirmed the lower court’s order. The appellate court granted the defendant’s motion to dismiss for failure to state a claim based on its finding that the TCPA did not apply. In December 2016, the defendant sent an automated text message to the plaintiff’s cell phone to market the defendant’s free chips promotion. The plaintiff no longer wished to receive these text messages, and accordingly, she responded to the promotion with a “STOP” message. The defendant then received a response stating that she would “no longer receive any more messages.” A few days later, the plaintiff received another automated text message with an offer.
The Court found that the TCPA did not apply because (1) the underlying system used to send the plaintiff a text message was not an automatic telephone dialing system (but rather a “stored” list of telephone numbers used), and (2) the message did not utilize “artificial or prerecorded voice,” each of which were required elements of prohibited activity under the TCPA.
