An attorney named Jeff Lohman recently narrowly escaped a jury verdict against him on a RICO claim arising out of allegations he had manufactured TCPA claims by encouraging clients to use vague opt out language during phone calls with Navient.

With the FCC’s recent revocation rules now in effect– requiring callers and texters to honor freeform opt out requests— we can expect to see a similar phenomenon. And the first of these cases seem to be rolling in.

The new FCC rules say callers must honor phrases like “stop” and “unsubscribe” but also leave the door open for consumers to opt out in “any reasonable means” that convey a clear intent for calls or texts to stop. The Commission’s ruling is clear that consumers are NOT limited to using just a few key words to opt out.

Yet any businesses– who do not follow TCPAWorld.com ;)– have failed to heed the message (ha) and continue to use SMS settings that can detect only keyword opt out requests.

That’s not going to fly anymore folks.

For instance in a new TCPA class action against American First Finance, the consumer responded with the message “Cease and Desist All Communication.”

Notice that this is a pretty clear request for calls and texts to stop when read by a human but a company’s SMS provider’s software is unlikely to flag this phrase.

And allegedly American First continued to send SMS messages to the consumer leading to a big fat class action here in California.

Now one point of interest, the Plaintiff does not appear to be within his own class definition. The class reads:

All persons within the United States who, within the four years prior to the filing of this lawsuit through the date of class certification, received two or more text messages within any 12-month period, from or on behalf of Defendant, regarding Defendant’s goods, services, or properties, to said person’s residential cellular telephone number, after communicating to Defendant that they did not wish to receive text messages by replying to the messages with a “stop” or similar opt-out instruction.

To my eye “cease and desist all communication” is not “similar” to the elegant “Stop” request we all know and love. But that’s for the court to determine I suppose.

Pretty clear bottom line here– I expect to see a TON of TCPA class actions rolling in focused on companies that might be heeding perfect stop requests but that are missing free form communications received via their SMS channel. HUGE mistake.

These requests need to be heeded and honored– and starting next April need to be treated as complete opt outs across all channels and all purposes.

Complaint here: predocketComplaintFile (22)