Breaking up can be messy, whether you are the one doing the breaking up or the one being broken up with. And, we all know about the different ways to break up with someone. “It’s not you, it’s me . . .”, “I need space . . .”, “I’m washing my hair that year . . .” However, when it comes to the proper way of breaking up with a telemarketer over text message, a New Jersey federal court is primed to shed some light on the issue.
On January 12, 2017 plaintiff Amy Viggiano filed a class action lawsuit (Viggiano v. Kohl’s Dep’t Stores, Inc., No. 3:17-cv-00243 (D.N.J.), alleging that Kohl’s violated the Telephone Consumer Protection Act (TCPA) by sending unwanted text messages and requiring consumers to respond “STOP” to the texts to cancel them. Specifically, the complaint alleges that Kohl’s “sent millions of text messages to consumers after purporting to designate the exclusive means by which consumers may withdraw consent to receive such messages.” There generally can be no violation of the TCPA if the consumer has consented to receive marketing calls or text messages – at least absent a subsequent request to the sender to stop sending them. The Federal Communications Commission (FCC) has ruled that consumers have the right to revoke such consent by using any reasonable method, including orally or in writing. The issue in this case turns on whether, after the plaintiff unequivocally consented to receive marketing text messages from Kohl’s, she reasonably broke up with Kohl’s.
The plaintiff specifically alleges that she withdrew her consent to receive future marketing text messages when she notified Kohl’s, via text message, to stop sending her such messages on multiple occasions. First, the plaintiff notified Kohl’s by a text message stating, “I’ve changed my mind and don’t want to receive these anymore.” Her second text message stated, “Please do not send any further messages.” In her final text message she stated “I don’t want these messages anymore. This is your last warning.” Kohl’s, in its motion to dismiss, does not dispute that the plaintiff did, in fact, send those messages. Rather, Kohl’s argues that, by providing a simple method to opt-out of receiving the text messages, that is, by texting back “STOP,” consumers had means to stop the messages if they no longer wished to receive them. Kohl’s further notes that the FCC has previously held it sufficient for a calling party to “give consumers a direct opt-out mechanism such as . . . a reply ‘STOP’ to text messages.” Interestingly, according to Kohl’s motion to dismiss, each time the plaintiff tried to withdraw her consent via text message, Kohl’s automated system would respond, via text message, the following:
Sorry we don’t understand the request! Text SAVE to join mobile alerts. Msg.&DataRatesMayApply. Receive 5-7 msgs/mon. Reply HELP for help, STOP to cancel.
It is hard to predict how the court will rule in this telemarketing version of War of the Roses. On the one hand, the FCC has held that the telemarketer must provide a reasonable way to end the relationship. On the other hand, Kohl’s appears to have done just that by providing a simple way to end it. One thing is clear however, if the New Jersey federal court agrees with the plaintiff, marketers may need to start deciphering each consumer’s break-up text message (as a side note, we do not recommend breaking up with someone over text message), one by one, to confirm, that in fact, the relationship is over.
We continue to monitor developments in TCPA litigation. Please see this list of recent TCPA actions.