TCPA Update: When Revocation of Consent Is Unreasonable

The District of New Jersey recently made clear that when attempting to cancel unwanted commercial text messages, if the recipient does not follow the sender’s simple instructions, any other attempts to revoke consent to the text messages may be found unreasonable. In Rando v. Edible Arrangements International, LLC, a class action lawsuit claiming violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., plaintiff claimed that she was sent commercial text messages from defendant using an automatic telephone dialing system (“ATDS”). Though plaintiff had originally consented to receive such text messages, and never followed defendant’s instruction to text “STOP to cancel,” the complaint alleged that plaintiff had revoked her consent to receive the messages via other return text messages of varying content and that defendant had impermissibly designated an exclusive means for the revocation of consent.”

The Rando court held that the complaint failed to state a TCPA claim by failing to allege that the plaintiff’s chosen method of revoking consent was reasonable. Plaintiff had replied to the text with language which would clearly indicate to a human being that she wanted to revoke her consent, but she did not text back “STOP” as instructed in the original text itself. Although District Court Judge Simandle found that the FCC’s statements on the meaning of revocation of consent in its 2014 and 2015 guidance were in conflict, ultimately, he held those statements “imply that a consumer may not validly revoke if their method of revocation is held to be, under the totality of the circumstances, unreasonable” (not mentioned in the decision, but noted in a recent blog, the D.C. Circuit recently upheld the FCC’s approach to revocation of consent but set aside its interpretation of “autodialer”).

Applying that principle to the facts at issue, the Court concluded that plaintiff’s attempt to revoke consent to receive text messages was unreasonable because she texted back “a verbose sentence” rather than the word “STOP.” Specifically, Judge Simandle explained: “in the totality of the circumstances, a reasonable person seeking to revoke consent would have tried, at least at some point during the back-and-forth, simply replying ‘STOP’ to cancel – as instructed, rather than ignoring Defendant’s revocation method and sending ten long text messages to that effect, most of which did not include the word ‘stop’ at all. There can be no question on these factual allegations but that Plaintiff did not comply, nor even attempt to comply, with the apparently simple directions repeatedly given to her: ‘Reply . . . STOP to cancel.’” The lesson in Rando is simple: follow simple instructions for revoking consent.

The Rando opinion is also notable for its holding with respect to Article III standing. Relying on Third Circuit precedent in In re Horizon and Susinno v. Work Out World, Inc. interpreting the U.S. Supreme Court’s decision in Spokeo v. Robins, Judge Simandle held that even the receipt of a text message could satisfy the requirement for alleging a concrete, albeit intangible harm, particularly where the complaint alleges ‘“the very harm that Congress sought to prevent,’ arising from prototypical conduct proscribed by the TCPA.”

Michael R. McDonald is a Director in the Gibbons Commercial & Criminal Litigation Department.