The Northern District of New York recently granted a motion to dismiss a putative class action on the grounds that the defendant honored the named class representative’s request to opt out of text messages within a reasonable time under the Telephone Consumer Protection Act (TCPA).
Background
Plaintiff received a text message from Defendant and requested to opt out of Defendant’s text messages by replying with “stop.” Plaintiff alleged, however, that he continued to receive text messages. Plaintiff alleged Defendant had the ability to immediately opt Plaintiff out of further communications and chose not to do so. As such, Plaintiff filed suit on behalf of himself and a putative class action under the TCPA.
In response, Defendant alleged that it had written “Do-Not-Call” policies as required by the TCPA, and the complaint established that it honored Plaintiff’s opt-out request within a reasonable timeframe by halting further text messages seven business days after the opt-out request was received.
Court’s Decision
The Court found Defendant’s arguments persuasive and granted its motion to dismiss, finding that Plaintiff failed to plead a viable claim under the TCPA. As the Court explained, the TCPA requires that telemarketing persons or entities honor an individual’s Do-Not-Call request within a reasonable time from the date that such a request is made. Many courts have held that a delay of more than 30 days would be considered unreasonable.
As the Court found, honoring an opt-out request within seven business days is reasonable under the TCPA as a matter of law, citing other cases within the Second Circuit that have found longer delays reasonable under the TCPA.
As the Court noted: “[t]hese cases suggest that even though § 64.1200(d)(3) does not create a definitive safe harbor for delays under 30 days, especially short delays may be found to be reasonable on the pleadings alone, without a fact-intensive inquiry.”
