A text sent one business day after a plaintiff requested a halt to text messages was not enough to move a Telephone Consumer Protection Act (TCPA) suit forward, a Florida federal court determined.
In July 2022, Eitan Barr began receiving solicitation text messages from Macys.com. On July 16, in accordance with Macys.com's instructions for opting out, Barr replied "STOP" to the text to halt future messages from being sent to his phone.
Barr received an acknowledgement of his request to stop the solicitation: "Macy's: Sorry to see you go! You're unsubscribed and will no longer receive promotional texts from Macy's."
On July 19, 2022 – three calendar days and only one business day from the request – Barr received another solicitation text message from Macys.com.
He filed a putative class action and Macys.com countered with a motion to dismiss, relying on 47 C.F.R. § 64.1200(d)(3), which requires callers to honor a do not call (DNC) request "within a reasonable time" that may not exceed 30 days.
Siding with the defendant, U.S. District Court Judge Andrew L. Carter, Jr. said Barr failed to allege facts sufficient to hold Macys.com in violation of the TCPA.
The mere fact that a plaintiff received a call after his request to not be contacted is not a subsection (d)(3) violation, the Court said.
"Under 47 C.F.R. § 64.1200(d)(3), a defendant must comply with a DNC request within 30 days," Judge Carter wrote. "As long as Defendant had a proper procedure in place to 'implement its DNC policy, no reasonable jury could find for [Plaintiff] on his claim of a violation of subsection (d)(3).' Here, the Court struggles to see how failure to comply with Plaintiff's DNC request within one business day could be unreasonable."
As for Barr's other claim, that Macys.com ran afoul of 47 C.F.R. § 64.1200(d)(1) because it did not maintain an internal DNC registry, the Court determined that it also failed because Barr's allegations were conclusory and he wasn't able to bolster his claim by showing evidence that he requested an internal DNC list from the defendant.
"Other than his conclusory allegation that Defendant lacked an Internal DNC, Plaintiff has failed to adequately dispute the existence of Defendant's Internal DNC list and policies, or that Defendant's procedures were lacking in any way," the Court wrote.
To read the opinion in Barr v. Macy's.com, LLC, click here .
Why it matters: The decision is a victory for TCPA defendants, because it applies a 30-day timeframe to determine what constitutes a "reasonable time" to implement an internal DNC request under the TCPA's Internal DNC Regulations. However, this result comes with a note of caution: The Federal Communications Commission is currently considering a Notice of Proposed Rulemaking (read our recent coverage of this notice here) that (among other things) would require callers to honor company-specific DNC and revocation of consent requests for robocalls and robotexts subject to the TCPA within 24 hours of receipt.
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