So the carriers–and the dangerous TCR!–have been pushing parties for double-optin/MFA before consumers can be added to a recurring text campaign.
While that might sound like a good thing for consumers it can actually be a massive trap for businesses–as Circle K just found out.
In Abboud v. Circle K Stores, 2024 WL 1765659 (D. Az. April 24, 2024) a district court denied a motion to dismiss a TCPA class action against the convenient store giant arising out of apparent double opt-in messages for Circle K’s discount code text program.
Specifically the messages at issue read:
- “Circle K: Reply ‘YES’ to Sign Up to receive special offers via txt message. Msg & Data rates may apply. Txt ‘STOP’ to Opt-Out.”
- “Circle K: Reply ‘YES’ to get offers via txt. Go to myck.site/k2KmEU, Age-verify
18/21+ offers. Msg & Data rates may apply. Txt ‘STOP’ to Opt-Out. - “Circle K: Reply ‘YES’ to get offers via txt. Go to myck.site/Qb9PtF, Age-verify 18/21+ offers. Msg & Data rates may apply. Txt ‘STOP’ to Opt-Out.
These messages are obviously the backend of a double opt in. That is the consumer would have interacted with Circle K via a call to action–either on a website or via text message sent to a shortcode–an then been sent this text as a second opt-in layer.
The problem, of course, is that if a consumer enters a wrong phone number onto a form the double opt-in isn’t going to do anything but send automated messages to the wrong person–and then can be real trouble.
In Abboud the Plaintiff sued Circle K arguing the messages were telephone solicitations that violated the TCPA’s DNC rules–and the Court agreed.
In the Court’s view the messages were for “the purpose of the text messages was to encourage Plaintiff to sign up to receive offers for future shopping at Circle K.”
Importantly the court rejected the argument the messages were sent for transactional purposes– because the Plaintiff had not initiated a transaction with Circle K it didn’t matter that Circle K was sending messages to complete a transaction with someone else.
Now that last point is questionable. If the intent of Circle K was to complete an opt in transaction with a third-party wrong number provider I think that should suffice to remove the messages from the realm of solicitations–and I would know since I literally created the “transactional” message exception in the old Aderhold case. (It’s amazing how many fingerprints I have on this statute.) But the Court did not buy Circle K’s effort to leverage this line of cases–which is unfortunate.
So let this sink in folks. The carriers are requiring double opt in messages. But businesses can be sued for sending those messages to the wrong number. And there is NOTHING a business can do to prevent those messages from being misdirected–the Reassigned Numbers Database is great for detecting reassignments but real time messages to wrong numbers cannot be stopped using the database. So the Circle Ks of the world are sitting ducks for this sort of litigation.
Eesh.
Two possible solutions:
- Double opt-in paradigms must be limited to ONLY one message. Period full stop. That way the text sender can take advantage of the one call safeharbor under 227(c). Then again if they have sent any other marketing messages to that consumer over the course of a year they’re in trouble.
- Courts reconsider the analysis here and find–correctly–that double opt in efforts ARE transactional. The fact that a consumer wasn’t the one that provided the number might mean they didn’t consent–but it doesn’t mean the opt in effort is promotional. On the other hand Circle K probably did itself harm by being too salesy in its message.
So take aways:
- Businesses looking to enroll consumers in recurring text campaigns face increased TCPA risk as they are required to send opt-in messages but can’t weed out wrong numbers;
- Limiting opt in messages to ONE per year–although unsavory from an enrollment perspective–can help protect businesses;
- Being ULTRA careful with the content of opt in messages is also key– keep any marketing elements out of the message;
Chat soon.