TCPAWorld is full of so many little nuances.
I am commonly asked whether the receipt of a “STOP” text constitutes a valid revocation for TCPA purposes. While the answer is a pretty simple “yes” when it comes to text messages, it is far less clear when it comes to phone calls.
As a reasonable consumer understands “STOP” only refers to text messages–and not voice calls–there is no reason to assume that a consumer has “clearly expressed” a desire that voice calls also stop (unless there is more to the message.) Notably, however, the converse is not true–if a consumer asks a caller to “stop calling” that is not permission to continue texting.
Well in a new suit a Court– for the very first time–has explored the impact of a “STOP” text response on the Established Business Relationship defense. Spoiler alert: its bad news.
As TCPAWorld readers know, an EBR is a defense to a DNC TCPA claim, but it does not work against a regulated technology claim (a so-called 227(b)) claim) based upon the use of an ATDS or a prerecorded/artificial voice message.
Where the EBR defense is available, however, it is pretty strong. 18 long months of calls are permitted following the last transaction with the caller. That is, of course, unless the EBR is ended by a do not call request.
And that raises the question–what if a consumer doesn’t, per se, ask not to be called but only texts “STOP” in response to a text? Is that enough to end the EBR?
So sayeth the court in Laguardia v. – Designer Brands Inc., Case No. 2:20-cv-2311, 2022 U.S. Dist. LEXIS 68885 (S.D. Oh. April 14, 2022).
You might remember Laguardia as one of the best ATDS cases to date. In an earlier ruling in the same case the Court held that an ATDS is only an ATDS if it calls random phone numbers— fn7 be darned.
In its latest ruling, the Court first walked back its erroneous conclusion that the lack of an internal DNC prevents the Defendant from leveraging an EBR defense. That’s great news, of course.
But after opening up the EBR defense to scrutiny the court arrived at two painful conclusions.
First, the court found that a Defendant must establish an EBR by clear and convincing evidence. I won’t waste your time explaining why that’s wrong–but it is wrong. And that’s a big deal, especially in edge EBR cases (like those involving affiliates.)
Second, the headliner. The Court determined that receipt of a “stop” message terminated the EBR. So all future solicitation calls are a violation of the DNC rules.
Now arguably, Laguardia can be read narrowly for the simple proposition that a “STOP” message is enough to terminate an EBR for future TEXT messages. But that does not seem to be the limit of the holding. So watch out folks.
As many businesses move to the text channel to assure better and more frequent engagement with consumers, Laguardia is a really important case. As you cast a wider net of texts you are also casting a wider net of potential opt outs through the easy-to-use and familiar stop functionality. If you’re relying on an EBR to make these calls, you may be burning through your list faster than you expect–and losing valuable EBRs that can be worked using human selection dialers.
Something to think about.
Happy Good Friday TCPAWorld.
I don’t see a way to read it narrowly, once an EBR is terminated, the EBR defense is inapplicable for all telemarketing, including calls. It’s written plainly in the CFR. 64.1200(f)(5)(i) The subscriber’s seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.