The TCPA And Confirmatory Opt Out Text Messages

Co-authored by Grant Dubler*

Earlier this summer, a federal judge in the Southern District of California dismissed a potential class action suit against Redbox over the movie rental company's use of confirmations for opt-out text messaging. Judge Dana Sabraw agreed with Redbox that a declaratory ruling from the FCC in November 2012 had held that confirmatory, noncommercial text messages following an opt-out request do not violate the Telephone Consumer Protection Act (TCPA), so long as the texts do not contain promotional or marketing information. She further held that links to websites that themselves include promotional information do not constitute "promotional or marketing" materials, in violation of the TCPA. In doing so, Judge Sabraw handed a major victory to businesses that rely on confirmatory text messages instead of phone calls and mass mailings. Notably, however, her ruling avoided the more significant issue at stake in the case, involving