Last week, a federal judge denied a motion to dismiss a putative class action brought under the Telephone Consumer Protection Act (TCPA) against Citibank concerning its transmission of text messages.  The case — Ryabyshchuk v. Citibank N.A., — is notable because one of the issues it addresses is whether an entity that transmits a text message to confirm a consumer’s opt out request has transmitted the message without the consumer’s prior express consent.  The Mobile Marketing Association’s Guidelines for text message campaigns advises that such confirmation messages should be sent.  In the ruling, Judge Irma Gonzalez of the Southern District of California held that Citibank could be liable for two messages: the first that allegedly inviting the applicant to call to discuss a credit card application, and the second that allegedly confirmed the consumer’s request to opt out of receiving future messages.  The consumer sought to opt out of receiving future messages after receiving the first text message from Citibank.

The TCPA, enacted in 1991, regulates and restricts telemarketing activities.  It permits plaintiffs who prove negligent violations to recover $500 for each violation, and it permits plaintiffs who prove “knowing or willful” violations to recover up to $1,500 per violation.  The plaintiff in Ryabyshchuk claims that the first text message constituted a negligent violation, and that the second message constituted an intentional violation.

In analyzing the plaintiff’s claim, Judge Gonzalez relied on precedent from the Ninth Circuit Court of Appeals holding that text messages are “calls” to which the TCPA applies and that text messages transmitted through automated systems are subject to the same requirements as automated telephone dialing systems under the statute.  She held that the plaintiff alleged sufficiently that he had not consented to either message, relying on his claim that he had not provided his mobile telephone number to Citibank other than by calling to inquire about a loan.

Last week was a busy week for TCPA litigation:  on the same date as Judge Gonzalez denied Citibank’s motion, the U.S. Supreme Court held oral argument in a case concerning jurisdictional issues under the statute.