Kohl’s Department Stores, like many a mobile marketer, uses a “How to Opt-Out” message to instruct consumers on how to stop receiving future text messages. The message includes instructions to text any of these commands: STOP, CANCEL, QUIT, UNSUBSCRIBE, OR END. But instead of using these one-word commands, Amy Viggiano replied with a variety of messages:
- “I’ve changed my mind and don’t want to receive these anymore.”
- "Please don't send any further messages."
- "I don't want these messages anymore. This is your last warning!"
"Sorry we don't understand the request!"
Kohl’s mobile service replied to these sentence-long responses by texting: “Sorry we don’t understand the request! Reply HELP for help, STOP to cancel.” Ms. Viggiano continued to use sentence-long responses even after receiving further clarification. Ms. Viggiano, of course, could have been adhering to Blaise Pascal’s observation that, if he had more time, he would have written a shorter letter. The more likely explanation is that Ms. Viggiano was deliberately evading the text messaging app while simultaneously appearing to revoke consent in a fashion that only a human being would understand.
Because this is ‘Murica, Ms. Viggiano immediately filed a class action lawsuit alleging violations of the Telephone Consumer Protection Act. Ms. Viggiano claimed that she initially consented to receive the texts but later withdrew her consent. Defendant admitted to using an ATDS that sent texts for a commercial purpose, so the key issue was whether Ms. Viggiano revoked consent in a reasonable manner with her long-winded responses.
The FCC prohibits callers from designating an exclusive means to revoke consent, and Ms. Viggiano argued that she revoked it in a manner consistent with the FCC’s rulings. The FCC has ruled that consumers “have a right to revoke consent, using any reasonable method including orally or in writing.” But Ms. Viggiano’s purported consent revocations are actually an example of crafty consumers, or their counsel, sending revocations designed to be unrecognizable to text messaging systems while at the same time appearing to be facially unequivocal revocations of consent.
The federal district court for the District of New Jersey, in the form of the Hon. Brian R. Martinotti, didn’t buy this nonsense. The Court dismissed the complaint and sternly rebuked Ms. Viggiano, or perhaps her counsel, by ruling: “[t]he facts in the Complaint suggest that Plaintiff herself adopted a method of opting out that made it difficult or impossible for Defendant to honor her request.”
This ruling should prove helpful to the upright citizens in the mobile marketing community: precluding consumers who creatively revoke consent (or so they think) in a manner designed to fool the machines by responding with poetry, haiku, or, as in Ms. Viggiano’s case, sentence-long responses.
Read the full ruling here: Viggiano v. Kohl’s Department Stores, Inc.
