A federal court in the Grand Canyon State recently held that text messages sent to an existing customer constituted a TCPA text message violation, even though they did not include any specific solicitations to purchase goods or services.
Background: Abboud v. Circle K Stores, Inc.
In Abboud v. Circle K Stores, Inc., the plaintiff sued the convenience store chain after receiving multiple texts from the company to a number listed on the National DNC Registry. The first of these texts read “Circle K: Reply 'YES' to Sign Up to receive special offers via txt message. Msg & Data rates may apply. Txt 'STOP' to Opt-Out.” She then allegedly received two subsequent messages, each of which said: “Circle K: Reply 'YES' to get offers via txt. Go to myck.site/k2KmEU, Age-verify 18/21+ offers. Msg & Data rates may apply. Txt 'STOP' to Opt-Out.”
The Plaintiff claimed that she never provided Circle K with her phone number, nor did she consent to having the company send these messages to her. In its defense, Circle K argued that the messages did not constitute “telephone solicitations,” as the term is defined in the TCPA as they did not include any offers for the purchase of any goods or services.
Instead, Circle K argued that the texts were confirmation messages sent following the entry of the Plaintiff’s number into its system in connection with a purchase transaction. Although they sought permission to contact her by text, the messages were merely opt-in requests, asking the Plaintiff whether she wanted to receive offers, and did not qualify as offers themselves.
The Plaintiff argued that although the messages did not explicitly advertise a product or service, Circle K intended to use these texts for marketing purposes, because they used language that encouraged her to opt in to receive such offers, and thus by extension encouraged her to purchase goods and services.
Court’s Ruling Highlights TCPA Text Message Violation Due to Implicit Marketing Intent
The presiding judge was persuaded by the Plaintiff’s arguments, stating that… “Although the messages did not expressly seek to induce Plaintiff to purchase a particular product, it is difficult to imagine why Defendant would repeatedly encourage her to sign up for offers other than to encourage her to make future purchases of goods at Defendant's stores based on those offers.”
This conclusion was further supported by the fact that the messages encouraged the Plaintiff to access Circle K’s website, which featured multiple offers for products sold by the company as well as information about its rewards program. The website also included a page titled “Text Messaging Program Terms and Conditions” which disclosed that the company sent its messages using automated technology, which further supported the conclusion that the messages constituted automated telephone solicitations under the TCPA.
Beware of Confirmation Texts
Circle K attempted to argue that these texts were essentially informational messages sent to an existing customer that did not include any sales solicitations. However, in this case the content of the messages was less important than the intent behind them.
Although they were lacking an express solicitation, the intent behind the messages sent in this case was to secure permission to send offers for the purchase of goods and services, and that intent was apparently enough for this court to determine that the messages constituted a TCPA text message violation.
Many companies send confirmation texts to customers after they provide their phone number. Any purely informational texts sent to existing customers, such as appointment reminders or emergency notifications, require a lesser level of consent than the prior express written consent (PEWC) necessary to send marketing texts.
Unless a customer initially provided PEWC to receive sales solicitations via text message in manner consistent with the TCPA, companies should be extremely leery of any subsequent attempt to secure PEWC via text message. As this case should make abundantly clear, it’s not a good idea.
