District Court (Cal.) Applies Common Sense Interpretation to TCPA; Grants MSJ to Defendant in Class Action based on Confirming Text Messages

In Ryabyshchuck v. Citibank (South Dakota) N.A., 2012 WL 5379143 (S.D.Cal. 2012), Judge Gonzalez issued a rare decision applying common sense to the TCPA.   Plaintiff filed a class action against the defendant under the TCPA arising out of confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff had provided his cellular phone number to Citibank in an online credit card application. When the number was entered, a pop-up message displayed: “By providing … your mobile number, you agree to receive calls and messages, such as text messages … to service your account.” Two days later, Citibank, via third-party vendor using short message service (“SMS code”), sent the following text message (the “first text”) to the cellular phone number Plaintiff had provided: “Free Text Msg.: Citi Cards needs to talk with you regarding your recent application. Please call 866 365–8962. To Opt–Out reply STOP.”  That same day, after Plaintiff replied “STOP,” Citibank sent the following text message (the “second text”) to Plaintiff’s cellular phone number: “Free Text Msg: Per your request you will no longer receive text messages from Citi Cards Credit Dept. If you have any questions call 866–365–8962.”.  Though the FAC alleged that both the first and second texts constitute negligent and/or knowing or willful violations of the TCPA, the parties agreed that it was the second message that Plaintiff is focused on for this class action.”). Judge Gonzalez granted defendant’s Motion for Summary Judgment under the TCPA.

With the statute’s purpose in view, the Ninth Circuit recently emphasized that courts look to the surrounding circumstances in determining whether particular calls “run afoul of the TCPA,” and in so doing, courts must “approach the problem with a measure of common sense.” Chesbro v. Best Buy Stores, L.P., ––– F.3d ––––, 2012 WL 4902839, at *3 (9th Cir. Oct.17, 2012); see also Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1453 (9th Cir.1992) (“Common sense not dogma is what is needed in order to explore the actual meaning of legislative enactments.”). ¶  Here, common sense renders the second text inactionable under the TCPA. See Henrique v. U.S. Marshal, 653 F.2d 1317, 1320 (9th Cir.1981) (“the Court must recognize the common sense practicalities of the situation presented.”). The lone text message at issue was sent to a number voluntarily provided by Plaintiff to Defendant without caveat. [Doc. No. 42 at 3–4.] In the span of a day, Plaintiff received a separate, indisputably inactionable text message (the first text), responded with a one-word, opt-out request, and received a concise response simply confirming receipt of the opt-out request (the second text). [Id.] These circumstances “unmistakably” display some measure of prior consent, cf. Satterfield, 569 F.3d at 955, and dispel any allusion to “the proliferation of intrusive, nuisance calls” targeted by the TCPA. See Mims, ––– U.S. ––––, 132 S.Ct. at 744, 181 L.Ed.2d 881. Such simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of plaintiff’s privacy under the TCPA. Id. A finding to the contrary would “stretch an inflexible interpretation beyond the realm of reason.” See Henrique, 653 F.2d at 1320. ¶  The Honorable Marilyn L. Huff recently reached this same common sense interpretation in Ibey v. Taco Bell Corp. 2012 WL 2401972, at *2–3 (S.D.Cal. June 18, 2012). Just as in this case, the text message at issue in Ibey was sent in response to plaintiff’s opt-out re-quest, to a number voluntarily provided by plaintiff, and merely confirmed receipt of plaintiff’s opt-out request. See id. Judge Huff surveyed the legislative history of the TCPA and concluded that:  “sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA. To impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute.”   2012 WL 2401972, at *3. ¶  In arguing that Ibey was wrongly decided, Plaintiff relies on opinions finding the TCPA content neutral. [See e.g., Doc. No. 38 at 22 n. 32 (citing Melingonis v. Network Communs. Int’l Corp., 2010 WL 4918979, at *1 (S.D.Cal. Nov.29, 2010) (“We note that [the TCPA] applies regardless of the content of the call …”)).]. But the rationale underlying Ibey concerns context rather than content, and context is indisputably relevant to determining whether a particular call is actionable under the TCPA. Chesbro, ––– F.3d ––––, 2012 WL 4902839, at *3. The plain language of the statute exempts certain calls in certain contexts. See 47 U.S.C. § 227(b)(1)(A)(iii) (exempting calls sent during an emergency or with prior consent). Moreover, the statute contemplates further contextual exemptions as delineated by the Federal Communications Commission (“FCC”). See, e.g., In Re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564, 2008 WL 65485 (Jan. 4, 2008) (FCC’s 2008 Declaratory Ruling exempting “calls to wireless numbers provided by the called party in connection with an existing debt.” ). In Ibey, Judge Huff considered circumstances nearly identical to those presented here and reasoned that “[t]o impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute.” 2012 WL 2401972, at *3. ¶  This Court agrees; imposition of liability under the TCPA for a single, confirmatory text message would constitute an impermissibly “absurd and un-foreseen result.” Henrique, 653 F.2d at 1320 (when interpreting the scope of a statute, “the Court must … refuse to be compelled into an absurd and unforeseen result.”). In line with the TCPA’s limited purpose, the Ninth Circuit’s recent emphasis on common sense practicality, and given the particular circumstances of this case, the Court finds the second text inactionable as a matter of law and therefore GRANTS Defend-ant’s motion for summary judgment.