Are opt-in confirmation texts actionable under the TCPA? Federal judge says Maybe!

Today I want to talk about a defendant in a TCPA lawsuit that sent some confirmation text messages and is now going to trial for unwanted solicitations in violation of the telephone consumer protection act. The lawsuit and opinion is Abboud v. Circle K Stores Inc., No. CV-23-01683-PHX-DWL, 2 (D. Ariz. Jan. 27, 2025).

There are a lot of facts in the case but I'll recite just those we need to understand the significance of the decision. This lawsuit is because Monica Abboud received four text messages from Circle K Stores, which in my experience are 7-11 type convenience stores.

• August 2, 2023: “Circle K: Reply ‘YES' to Sign Up to receive special offers via txt message. Msg & Data rates may apply. Txt ‘STOP' to Opt-Out. 855-276-1947.” (Doc. 39-1 at 34.)

• August 2, 2023: “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. 855-276-1947.” (Id.)

• September 11, 2023: “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. 855-276-1947.” (Id.)

• September 12, 2023: “Circle K: Opt-Out confirmed. Thank you for responding. Msg & Data rates may apply. To Sign Up in the future reply yes. 855-276-1947.” (Id.)

Circle K said the text messages were generated by some customer going into a Texas Store and entering Abboud's phone number into a "tobacco club" to get discounts on cigarettes. Entering a phone number, any number, gave the consumer at the counter an instant discount on a cigarette purchase, motivating the person to get the discount but enter a fake phone number to get out of the consequences.

Circle K filed a motion to dismiss making several arguments:

1. The texts weren't telephone solicitations so didn't run afoul of the Telephone Consumer Protection Act

2. Someone consented to the text messages by entering in Abboud's phone number

3. Established Business Relationship

Spoiler alert, none of them worked. Circle K's best argument, and one that could have worked in some courts, was that these were opt-in confirmation texts, and as such weren't regulated under the TCPA.

Defendant argues that the text messages at issue do not qualify as “telephone solicitations” under the TCPA because a solicitation must “encourage the future purchase of property or services” and the messages in this case “were merely to confirm Plaintiff's opt-in to a program through which plaintiff could thereafter receive special offers. While those future special offers might encourage the purchase of property, goods, or services, the initial messages confirming enrollment in a program did no such thing.”

Circle K thru in a line that many judges would have jumped at: “this is not a case in which the purpose of the message was to encourage a non-customer to purchase a product or service at all. To the contrary, the very purpose of the opt-in messages at issue here is to protect Plaintiff from receiving any unwanted marketing messages in the future.”

Where Circle K seems to have lost this motion was informing Abboud that the point of the confirmation texts was to receive future offers, a wound made fatal at oral argument:

As Defendant's counsel seemed to acknowledge during oral argument, that additional language was unnecessary to achieve the purpose of confirming the recipient's consent to receive future messages: “I would agree with your Honor that there probably could be language in the text that makes it a little bit clearer that this is . . . just a sign-up process and not a solicitation.”

If Circle K loses this case at trial they are definitely appealing, and I think anticipating that, the judge did a very reasoned opinion to explain why these confirmation texts were so called dual purpose texts - with both a customer service or informational component as well as a marketing component.

Additionally, “to engage in ‘telephone solicitation,' a caller does not need to directly offer property or services for sale, but may merely encourage the future purchase of property or services.” Faucett v. Move, Inc., 2023 WL 2563071, 4 (C.D. Cal. 2023) (cleaned up). See also Chesbro, 705 F.3d at 918 (“Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.”); Orea v. Nielsen Audio, Inc., 2015 WL 1885936, 3 (N.D. Cal. 2015) (“A call that encourages future purchasing activity may be a telephone solicitation, even if the sales pitch is not explicitly contained in the call itself.”).

And at the end of the day the judge if these text messages had a telemarketing component to them was a question of fact for the jury:

whether the text messages qualify as “telephone solicitations” turns on Defendant's purpose in causing the messages to be sent. But questions about a party's purpose or intent are almost quintessential questions of fact.

If you are in a similar situation as Abboud, an important point to drive home to your judge is (using the vernacular in your texts)

Although Defendant contends that the text messages cannot qualify as “telephone solicitations” because they were intended merely to confirm Plaintiff's enrollment in Defendant's messaging program, this contention ignores that a message may be sent for more than one purpose. And as Plaintiff correctly notes, Defendant does not “explain why-if those messages were truly simply confirmation attempts-the messages would reference ‘offers' and ‘special offers.'”

As much as I like this judge, I can't say I care for Abboud's attorney

Plaintiff's counsel conceded during oral argument that if the text messages had merely stated “Circle K, reply yes to confirm the receipt of future text messages,” they would not run afoul of the TCPA.

because he conceded that a telemarketer can send many texts trying to get the consumer to confirm an opt in, which goes against the point of the telephone consumer protection act - getting fewer calls trying to get consumers to buy something - and goes against other 9th circuit caselaw

Defendant asserts that it cannot be liable pursuant to the Telephone Consumer Protection Act because each text message it received from Plaintiff's phone constitutes express consent for it to send singular, confirmatory text messages in response. The Court agrees. Moskowitz v. Am. Sav. Bank, CIV. NO. 17-00299 HG-RT, 2 (D. Haw. Jan. 6, 2020)

If receiving a text is consent for only one response text, why is a consumer obligated to receive many texts from Circle K in response to some Joe Blow entering any random phone number at a checkout terminal to get a couple dollar discount but duck the ensuing telephone solicitations?

The court spent quite a bit of time debunking the second Circle K argument - Joe Blow's entering a random phone checkout terminal to get a couple dollar discount is sufficient consent for Circle K.

According to Defendant, N. L. by Lemos is inapplicable because “the case arose in the context of a ‘reassigned number' (which was reassigned years ago) distinguish[ing] its applicability from the case of a number (even erroneously) entered by an actual Circle K customer triggering the immediate response of an opt-in confirmation message . . . In the context of a wrong number, however, there is no such authority precluding a caller from relying on the consent of the person who provided the phone number before making a call.” . . . Defendant asserts that consent exists because an unknown person entered Plaintiff's phone number into the Texas store's Lift System and that “person in front of the Lift screen [saw] the disclaimer and [was] aware that there [was] going to be a text message that's going to be occurring after entering the phone number.””

Defense attorneys get paid a lot to make these nonsense arguments but the judge wasn't a telemarketing shill The italicized language provides a clear textual clue that the person receiving the call-in this case, Plaintiff-must be the same person who provided the prior consent.

Circle K's last bad argument was that records indisputably demonstrate the existence of an established or pre-existing business relationship between Plaintiff and [Circle K]. Just when you thought Circle K might finally have a winning argument, their indisputable records was the Joe Blow buying cigarettes' in Texas!

That business relationship, according to Defendant, is evidenced by the fact that “[d]uring the transaction on August 2, 2023, when Plaintiff's phone number was entered, both fuel and cigarettes were purchased from [Defendant]. Indeed, Plaintiff's phone number was entered to directly receive a discount on the cigarette purchase, which also began the enrollment process into [Defendant's] messaging program.”

That circular logic argument didn't go anywhere:

Defendant may have entered into an established business relationship with the unknown person who entered Plaintiff's phone number into the Lift system in Defendant's store in Texas, but that encounter did not involve any purchase, transaction, inquiry, or application by Plaintiff herself. Thus, Plaintiff cannot be said to have entered into an established business relationship with Defendant.

What is the take away from Abboud? No judge is likely to make a single and pure opt-in confirmation text actionable and society doesn't probably want that. People do request certain calls and a one text confirmation text is probably a balance between painfully difficult processes to get them, and telemarketers exploiting a loophole to swallow the consent rule.

However the purpose of the TCPA is regulating calls that "encourage the future purchase of property or services" and as much as judges want to pretend that confirmation texts don't do this, it is exactly their purpose. Circle K's intent in sending theirs to Abboud was to encourage the future purchase of property or services by clearing the way for more telephone solicitations. If we pretend that confirmation texts aren't part of the sales process we start living in non-reality where defense attorneys and out of touch judges live and create anti-consumer laws.

It is better for us to to recognize that opt-in confirmation texts are part of the sales process and regulate them accordingly but in service to maximizing the balancing of societies needs.

It is better to reward Circle K with a legal path forward when they get a request for calls so we avoid situations like the text to the left. A "Thank you for opting in" text message where the recipient of the text message did not consent to any telephone solicitation from Proficient Helper LLC.

If companies are going to get spanked either way, they might decide the profit is better by going all in on calls and messaging without being responsible and verifying the opt in.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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