June 11, 2015

tcpaOn June 1, the United States District Court for the Northern District of California dismissed an action filed against AOL, Inc. (“AOL”) for alleged violations of the Telephone Consumer Protection Act (“TCPA”). The Court ruled that AOL’s Instant Messenger service, which allows users to send text messages, is not an automated telephone dialing system (“ATDS”) within the meaning of the TCPA. The Court also ruled that AOL’s confirmation text, one that confirmed the plaintiff’s “opt-out” request, does not violate the TCPA.

Can an Instant Messenger service provider be liable for violating the TCPA?

AOL Not Liable Under the TCPA

The plaintiff in this lawsuit was a subscriber to AOL’s Instant Messenger service. The plaintiff alleged that in June 2014, he received three (3) text messages through AOL’s instant messenger service that were intended for someone else. The plaintiff subsequently used AOL’s opt-out function to no longer receive text messages through the Instant Messenger service. AOL sent the plaintiff a text message confirming his opt-out request and the plaintiff subsequently sued AOL.

The Court ruled that AOL’s Instant Messenger service is not an ATDS under the TCPA because “this case involves personalized text messages, composed by individual [Instant Messenger] users, sent to numbers chosen and manually inputted by the users.” The Court also ruled that AOL’s confirmation of the plaintiff’s opt-out request does not violate the TCPA because the automated confirmation “does not constitute the sort of automated and intrusive telemarketing communications the TCPA was enacted to combat.” Accordingly, the entire action was dismissed.

Protect Yourself

As we blogged last month, courts are increasingly scrutinizing plaintiff claims that defendants have used an ATDS. The greater the degree of human intervention involved in the sending of text messages (or placing calls), the more likely it is that courts may find that an ATDS was not used for TCPA purposes.

If you are interested in learning more about this topic or if you have been served with process concerning the TCPA or your telemarketing practices, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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