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Text Message Platform May Be Autodialer But Consent Makes Texts OK

(May 4, 2017) A text message platform that sends messages only to a set list of numbers may be an “autodialer” under the Telephone Consumer Protection Act (TCPA), the Seventh Circuit found. However, if the party claiming a violation of the TCPA voluntarily provided their number, then there may be no cause of action.

A customer of Chicago-based Bijora, Inc., which operates Akira boutique women’s clothing and accessory stores, filed a class action seeking $1.8 billion in damages. The woman alleged that the retailer used Opt It, Inc.’s text message platform, which sent text messages to persons who gave their telephone numbers to the retailer or signed up online to receive text messages. The plaintiff contended that the system was a prohibited automatic telephone dialing system. Opt It settled with the plaintiff.

The trial court granted summary judgment to Bijora because the court said the Opt It system was not an automatic dialer. The appellate court disagreed, stating that the question of whether the system falls under the definition of an automatic telephone dialing system needed further factual proof. Nevertheless, the appellate court upheld dismissing the case because, even if the system were an automatic dialer, the plaintiff gave consent.

The plaintiff said she received over 60 text messages in a two-year period. She argued she had provided her phone number to receive “discounts” but not “mass marketing text messages.” The appellate court rejected her argument. “We are unpersuaded that there is a distinction of legal significance between the two in terms of Blow’s consent: the alleged ‘mass marketing’ texts were in fact the very ‘exclusive information and special offers’ described on Blow’s Akira VIP and client cards.”

“Blow’s attempt to parse her consent to accept some promotional information from Akira while rejecting ‘mass marketing’ texts construes ‘consent’ too narrowly,” the appellate court concluded.

Nicole Blow v. Bijora, Inc., Seventh Cir. Nos. 16-1484 and 16-1608, issued May 4, 2017.