District Court (Fla.) Holds that TCPA Text-Message Plaintiff Adequately Pleaded Use of an Autodialer and Revocation of Consent to Receive Text Messages

In Legg v. Voice Media Group, Inc., — F.Supp.2d —-, 2014 WL 29594 (S.D.Fla. 2014), Judge Cohn found that a TCPA Plaintiff adequately pleaded use of an autodialer as well as that the Plaintiff could and did revoke consent to receive text messages.  This putative class action arose from the allegedly improper transmission of text messages by Defendant Voice Media Group, Inc. (“VMG”). VMG operated text alert services which transmit text messages to the cell phones of consumers across the country. Plaintiff alleged that he subscribed to VMG’s services in 2012 and early 2013, but later had second thoughts about receiving text messages from VMG, and sought to unsubscribe from VMG’s services by sending the message “STOP” to VMG. VMG responded by instructing Legg to reply “STOP ALL,” or “STOP” in combination with a number of other options, to stop receiving text messages.  Legg sent the message “STOP ALL” and other similar messages to VMG, but VMG continued to send text messages to Legg through the commencement of this action in September 2013.   Judge Cohn found that the Plaintiff stated a TCPA claim for continued sending of text messages thereafter. Judge Cohn found use of an autodialer adequately pleaded.

Legg alleges that VMG operates its text alert services by sending mass text messages via an automatic telephone dialing system known as an “auto-dialer” or “predictive dialer.” DE 1 ¶¶ 32–33, 36. VMG sends these mass messages from a “short code,” which is a type of telephone number typically used by companies to communicate with large numbers of consumers. Id. ¶¶ 11, 19, 32–33, 36. Legg supports his allegations of VMG’s mass messaging by reference to VMG’s presence in over 50 major metropolitan areas and voluminous consumer complaints about text messages received from VMG’s short code. Id. ¶¶ 31–32. Legg contends that such mass messaging would be impracticable without the use of an automatic telephone dialing system. Id. ¶ 32. The Court finds these factual allegations of mass messaging from VMG’s short code that could only be achieved via an automatic telephone dialing system sufficient to support a reasonable inference that VMG has used such a system. See Robbins v. Coca–Cola Co., No. 13–132, 2013 U.S. Dist. LEXIS 72725, at *6–8 (S .D. Cal. May 22, 2013) (factual allegations of mass messaging sufficient to plead use of automatic telephone dialing system). Legg has therefore sufficiently pled VMG’s use of an automatic telephone dialing system to withstand a motion to dismiss. See Twombly, 550 U.S. at 555.

Judge Cohn found that the Plaintiff could and did adequately plead revocation of consent.

47 U.S.C. § 227(b)(1)(A) prohibits only calls made without “prior express consent.” VMG argues that, because Legg consented to receive messages by subscribing to VMG’s text alert services, Legg cannot state a TCPA claim on the basis of messages from VMG. DE 9 at 3–6. Legg does not dispute that he initially consented to receive messages from VMG. DE 16 at 1. Instead, Legg contends that he revoked his consent, but continued to receive the messages in violation of the TCPA. DE 16 at 1; DE 29 at 2–4.   Though the TCPA is silent regarding revocation of consent, courts considering the issue have held that it is possible for consumers seeking to halt calls to their cell phones to revoke prior consent to such calls. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 272 (3d Cir.2013). As noted by Judge Middlebrooks in Osorio v. State Farm Bank, F.S.B., 859 F.Supp.2d 1326, 1331 (S.D.Fla.2012), the Eleventh Circuit has not addressed precisely what is required to revoke consent under the TCPA once it has been given. Nevertheless, because the TCPA is a consumer protection statute that is remedial in nature, it should be construed liberally in favor of consumers. Gager, 727 F.3d at 271; accord Carmichael v. Nissan Motor Acceptance Corp., 291 F.3d 1278, 1280 (11th Cir.2002) (per curiam) (“Like the TILA, the CLA is a consumer protection statute which ‘is remedial in nature and therefore must be construed liberally in order to best serve Congress’ intent.’ ”).  ¶  Here, Legg alleges that VMG instructed him to send the message “STOP ALL” to stop receiving text messages. DE 1 ¶ 26. Legg alleges that he sent the message “STOP ALL” to VMG. DE 1 ¶ 27. In other words, Legg alleges that he took the steps VMG had established for consumers to communicate a desire to stop receiving messages. Taken in a light most favorable to Legg, the Court finds these facts sufficient to plead that Legg revoked his consent to receive text messages from VMG, and accordingly that messages postdating the revocation were sent without his consent. See Munro v. King Broad. Co., No. 13–1308, 2013 U.S. Dist. LEXIS 168308 (W.D.Wash. Nov. 26, 2013) (holding that, where weather alert service instructed user to reply “STOP” to cease receiving text messages, user’s message of “STOP” to service was sufficient to create factual issue with regard to revocation of consent). The Court also rejects VMG’s contention that its system’s failure to process Legg’s revocation of consent by the means allegedly provided by VMG is renders the revocation ineffective as a matter of law.