Federal Magistrate Recommends Dismissing TCPA Class Claims Against Coke

Responding to an invitation to text can satisfy TCPA's Express Consent Requirement

In a Telephone Consumer Protection Act (TCPA) putative class action against Coca-Cola and its marketing agent, a Northern District of Alabama magistrate judge recommended dismissal on September 3, 2014 of most of the plaintiff's claims on grounds that the plaintiff gave Coca-Cola prior express consent to send text messages to his mobile phone.

The plaintiff alleged that he and the putative class members responded to a Coca-Cola scoreboard message at a college football game asking fans to "vote" for their favorite team using their mobile phones. The plaintiff alleged that, after voting, he received a series of unsolicited text messages on his mobile phone. Based on this, the plaintiff alleged that Coca-Cola unlawfully used an automated telephone dialing system ("ATDS") to text his mobile phone and that Coca-Cola unlawfully texted his mobile number in violation of the national do-not-call registry on which the number was allegedly listed.

Coca-Cola filed a motion to dismiss both the ATDS claim and the do-not-call registry claim. On the ATDS claim, Coca-Cola unsuccessfully argued that a text message is not a call under the TCPA (an argument that courts have almost universally rejected), and that Coca-Cola did not use an ATDS in dialing the plaintiff's mobile number (a closer question under current law because the parameters of what qualifies as an ATDS are constantly evolving with technology). Coca-Cola was successful, however, in arguing that it had a complete affirmative defense to the plaintiff's claims because the plaintiff gave "prior express consent" by texting his "vote" to Coca-Cola. In agreeing with Coca-Cola on the express consent argument, the Court adopted a fairly expansivebut well-supported by precedentdefinition of consent as "knowingly releasing" a...