MACY’S OUT OF TCPA SUIT: Court Holds Delay of One Business Day to Process DNC Request Not “Unreasonable”

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Quick one for you folks.

As TCPAWorld readers know the FCC is currently considering a couple of important NPRMs. One of those is designed to limit the amount o time businesses have to respond to DNC requests to as little as 24 hours!

R.E.A.C.H. (always on the forefront here) filed a comment trying to explain how unworkable such a deadline would be, but it remains to be seen what the Commission does with it.

The Czar discusses the FCC Revocation NPRM with Arbiet U!  For more CRITICAL content follow our INCREDIBLE YouTube Channel!

Under current law a company has “up to” 30 days to stop calling but the “reasonable time” standard remains. And some courts have given much less than 30 days as reasonable.

While the line of “reasonableness” may not be clear the court in Barr v. Macys.com,  2023 WL 6393480 (S.D.N.Y. Sept. 29, 2023) clarified that a business need not honor an opt out within 3 days and 1 business day–and that’s a bit win for Macy’s and TCPAWorld as a whole.

In Barr the Plaintiff asked for texts to stop on Saturday July 16, 2022. On July 19, 2022–the following Tuesday–Macy’s sent one more promotional text.

Now arguably Macy’s could have moved to dismiss because Plaintiff alleged only receipt of one text in violation of the TCPA and 227(c) requires multiple calls to be actionable.

Instead, however, Macy’s focus on the argument that it had a reasonable time to stop messages and a 3 day delay simply was not unreasonable. The Court agreed:

Here, the Court struggles to see how failure to comply with Plaintiff’s DNC request within one business day could be unreasonable. Again, Plaintiff has also not put forward evidence that Defendant lacked a proper procedure at the time the contact was made. Therefore, Plaintiff’s TCPA claims must be dismissed.

That’s a great result folks.

But keep in mind this 3-4 day grace period to honor a revocation is in peril given the FCC’s current NPRM proceeding. So pay attention!

For now the take away is clear–courts will give a business a reasonable time to honor a stop request. That doesn’t mean businesses should be slow, however. Courts are not always forgiving here. So tread carefully and honor consumer requests to opt out!

For more information on TCPA revocation rules be sure to obtain a FREE copy of the 2023 TCPA Review, presented by TrustedForm!:

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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