A District Court judge in Florida has allowed most of a consumer’s Telephone Consumer Protection Act lawsuit to move forward, ruling that her texted request to stop the messages could plausibly have revoked her consent to marketing phone calls as well.
The background: The case grew out of a marketing push that a consumer says kept going long after she asked it to stop.
- The defendant, a water treatment company, began sending the plaintiff telemarketing texts promoting its water purification products.
- The plaintiff, whose number had sat on the national do-not-call registry for years and who says she never gave written consent to be contacted, replied “Stop” and “Remove.”
- The defendant answered with an automated text confirming she had “successfully opted out” and inviting her to text “START” to resubscribe, which she never did.
- Even so, the plaintiff says the calls began in earnest, with the defendant dialing her more than 20 times over the following weeks, well past the window for honoring an opt-out.
- She sued under the TCPA and the Florida Telephone Solicitation Act on behalf of herself and proposed classes of others who were called or texted, and the defendant moved to dismiss.
The ruling: Judge Beth Bloom of the District Court for the Southern District of Florida granted the motion to dismiss in part, but let the core of the case proceed.
- The defendant’s central argument was that the plaintiff had opted out of texts only, so the later calls could not violate the statutes; the judge was not persuaded.
- Citing guidance from the Federal Communications Commission, Judge Bloom noted the agency has confirmed that a revocation “extends to both robocalls and robotexts regardless of the medium used to communicate the revocation of consent.”
- Whether a one-word “Stop” reasonably signaled a desire to cut off every kind of contact, she added, is “a question of fact not suitable for resolution at this stage.”
- The judge rejected the argument that the complaint was an improper “shotgun pleading,” finding that bundling calls and texts together simply reflected the plaintiff’s theory that revoking consent to one revoked consent to the other.
- She likewise set aside claimed contradictions in the complaint, holding that whether the conduct ran six days or thirteen months made no difference so long as calls continued past the deadline to stop.
- The defendant’s one win came on a standalone count for “knowing and willful” violations, which the judge dismissed after agreeing that treble damages are an enhancement of the existing claims rather than a separate cause of action.
