An Arizona federal court determined that opt-in texts could violate the TCPA in a new decision.

Although Monica Abboud registered her phone number on the National Do Not Call Registry, she alleged that she received multiple texts from Circle K. The first stated: “Circle K: Reply ‘YES’ to Sign Up to receive special offers via txt message. Msg & Data rates may apply. Txt ‘STOP’ to Opt-Out.” Plaintiff thereafter received two additional messages from Circle K with substantially similar content: “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.”

In her putative class action, Abboud told the court that she never consented to receive messages from, or registered her number with, Circle K.

The convenience store moved to dismiss the suit on the grounds that the communications were not “telephone solicitations” under the TCPA. Circle K argued that the opt in texts didn’t trigger TCPA liability because they did not offer the purchase or rental of, or investment in, property, goods or services. Instead, the texts were clearly confirmation messages that followed from the entry of Abboud’s phone number into Circle K’s system during a register transaction.

Abboud responded that it didn’t matter that the text messages did not explicitly mention a good, product or service, because Circle K’s intent to use the messages for marketing purposes could be inferred from the language encouraging her to opt in to receive offers and special offers and to entice her to purchase goods.

U.S. District Court Judge Dominic W. Lanza agreed.

“Although the messages did not expressly seek to induce Plaintiff to purchase a particular product, it is difficult to imagine why Defendant would repeatedly encourage her to sign up for offers other than to encourage her to make future purchases of goods at Defendant’s stores based on those offers,” the court wrote.

The language in the second and third text messages directing Abboud to “go to” Circle K’s website further supported her contention that the messages qualified as telephone solicitations, the court added, as the website includes graphics about the products Circle K sells and information about its rewards program.

Circle K’s website also contained a Text Messaging Program Terms and Conditions page stating that it sends marketing text messages via automated technology.

“Although a reference to marketing in the terms and conditions may, alone, not be enough to make the text messages telephone solicitations, this allegation when considered in combination with the allegations discussed above further supports the conclusion that the text messages plausibly qualify as telephone solicitations,” Judge Lanza said.

To read the order in Abboud v. Circle K Stores Inc., click here.

Why it matters:

The court was not receptive to Circle K’s argument that the plaintiff’s phone number was entered into its system and the texts were clearly opt-in messages seeking confirmation, leaving companies with a tough decision about how to connect with potential customers via text programs.