[author: Joshua Threadcraft]

Ryabyshchuck v. Citibank (South Dakota), N.A., No. 11-cv-1236-IEG (WVG), 2012 WL 5379143 (S.D. Cal. Oct. 30, 2012)

Pending before the court were cross-motions for summary judgment on the dispositive issue of whether confirmatory text messages set to a cell phone number voluntarily submitted via an on-line credit application violated the TCPA. Specifically, after providing his cell phone number to Defendant, Plaintiff received a text message from a third-party vendor acting on behalf of Defendant. Plaintiff replied to the text with the words “stop,” to which Defendant sent the following text message stating that per Plaintiff’s request Plaintiff would no longer receive text messages from Defendant. If Plaintiff had any questions, Plaintiff could call a 1-866 number. As issue was Defendant’s text message stating it would not send Plaintiff any more text messages.

Granting summary judgment in Defendant’s favor, the court stated that “[h]ere, common sense renders the second text inactionable under the TCPA. The long test message at issue was sent to a number voluntarily provided by Plaintiff to Defendant without caveat. In the span of a day, Plaintiff received a separate, indisputably inactionable text message (the first test), responded with a one-word, opt out request, and received a concise response simply confirming receipt of the opt-out request (the second text). These circumstances ‘unmistakably’ display some measure of prior express consent and dispel any allusion to the ‘proliferation of intrusive nuisance calls’ targeted by the TCPA. Such simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of plaintiff’s privacy under the TCPA. A finding to the contrary would ‘stretch an inflexible interpretation beyond the realm of reason.’”

The court concluded stating that “imposition of liability under the TCPA for a single, confirmatory text message would constitute an impermissibly ‘absurd and unforeseen result.” In line with the TCPA’s limited purpose, the Ninth Circuit’s recent emphasis on common sense practicality, and given the particular circumstances of this case, the Court finds the second text inactionable as a matter of law.”

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.