Sonic Gets Away With ONE–But Not Two–Unconsented Marketing Texts

So this was a weird case that I had to read a couple of times to understand because it is a bit unusual factually. Interesting little case though.

Here are the (alleged) facts:

Sonic texts dude saying: “[t]he BBLT is back at SONIC and bringing the bacon!” (the “July 11 Text”)

Dude responds: Stop

Sonic texts saying: Dude “will no longer receive text messages from SONIC” one minute later.

Sonic texts again: “Celebrate Nat’l Hot Dog Day at SONIC!” (the “July 22 Text”).

These facts look pretty bad. Yet the court granted Sonic’s motion to dismiss. And the reason why isn’t immediately obvious.

But here’s the deal. Plaintiff apparently did not allege his number is on the national DNC. As such the first text he received does not violate 227(c) of the TCPA (although it might violate 227(b) if it was sent using an ATDS).

So although the July 22 Text did violate the TCPA and the CFR’s–i.e. it did not honor the Plaintiff’s DNC request–it was only a first violation of the TCPA’s DNC rules. And 227(c) requires two violations of the DNC rules to trigger a claim.

The Plaintiff argued that since the one text seemingly violated two provisions of the CFR–those preventing calls to folks on the internal DNC list and those preventing calls being made without an internal DNC list–that the “two call” requirement of 227(c) was satisfied. The Court disagreed, however, finding that argument too creative by half.

So in the end, Sonic gets away with one. Literally.

Case is Collins v Sonic, 2022 WL 2298194 (W.D. Ok. June 22, 2022.)


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