A recent District of New Jersey case emphasizes that while, under the FCC’s 2015 interpretation of the law, a customer has a broad right to revoke consent to receive automated calls and texts under the Telephone Consumer Protection Act (“TCPA”), the manner in which the consumer seeks to revoke his or her consent must be reasonable.
On November 27, 2017, a New Jersey federal judge dismissed a putative class action against Kohl’s, rejecting the plaintiff’s assertion that her sentence-long opt-out replies to automated text message “sales alerts” were reasonable when she was presented with other clear and simple opt-out mechanisms.
The FCC’s rules under the TCPA prohibit a caller from making telemarketing or advertisement calls and texts using an Automatic Telephone Dialing System (“ATDS”) to a mobile telephone number without the “prior express written consent” of the call recipient. In its 2015 Order interpreting the statute, currently on appeal before the D.C. Circuit, the FCC stated that consumers may revoke such consent “through any reasonable means.”
The plaintiff in the New Jersey litigation initially consented to receive automated sales alerts from Kohl’s via text message, but she later attempted to revoke her consent by responding to those messages with messages of her own, including “I’ve changed my mind and don’t want to receive these anymore,” “please do not send any further messages” and “I don’t want these anymore. This is your last warning!” Under the terms and conditions of Kohl’s mobile sales alerts, customers can opt-out of receiving future messages by texting back any of the following commands: STOP, CANCEL, QUIT, UNSUBSCRIBE, or END. In response to each of her attempted revocations, the plaintiff received an automated reply that stated in relevant part: “Sorry we don’t understand the request! Reply HELP for help, STOP to cancel.” Plaintiff did not do so.
Nevertheless, the plaintiff argued that her more lengthy responses constituted effective revocation of her consent, and that Kohl’s continued messages violated the TCPA. The plaintiff asserted this claim on behalf of herself and a class she believed to number in the tens of thousands.
In finding that the plaintiff’s actions did not constitute effective revocation of her consent, Judge Brian R. Martinotti cited another portion of the FCC’s 2015 Order:
When assessing whether any particular means of revocation used by a consumer was reasonable, we will look to the totality of the facts and circumstances surrounding that specific situation, including, for example, whether the consumer had a reasonable expectation that he or she could effectively communicate his or her request for revocation to the caller in that circumstance, and whether the caller could have implemented mechanisms to effectuate a requested revocation without incurring undue burdens. We caution that callers may not deliberately design systems or operations in ways that make it difficult or impossible to effectuate revocations.
Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd 7961, 7996 ¶ 64 n.233 (2015). Judge Martinotti concluded that the plaintiff could not have reasonably expected that she could communicate her request for revocation in the manner that she did, given that each time she attempted to do so she received an automated response stating that her message was not understood.