Another day another patchwork ATDS decision here in TCPAland. But this latest case has an interesting wrinkle– can a text message responding to a “help” request from a consumer be sent even if the original text prompting the “help” response was sent without consent?

In Zemel v. CSC Holdings LLC, Case No. 18-2340-BRM-DEA the court considered a motion to dismiss the complaint in a TCPA text message case and resolved that a message sent in response to a “help” message could not have violated the TCPA because the consumer had requested a response by asking for help.

In Zemel the Complaint alleges the receipt of three texts. The first text was a confirmation text confirming that a mobile number was added to set up an account with the texter. The Complaint alleged that the Plaintiff had not signed up for any service with the texter and so the initial text was sent without consent. The Plaintiff responded “help” to the text–allegedly to obtain information about the texter– and claimed that a subsequent responsive text providing a link to a support website also violated the TCPA as an unconsented text.

Defendant moved to dismiss arguing, inter alia, that it did not use an ATDS to send the messages and that the facts demonstrate Plaintiff consented to receive the text following the HELP request.

The Court made short work of the ATDS argument. Rather than address Marks or Pinkus or struggle with functionality, the court adopted the following rule: ” No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature of the message, the length of the sending number, the number of messages, and the relationship between the parties.” Zemel at *4.

The Court was convinced that Plaintiff satisfied his pleading burden in this text message case because he alleged: “despite a lack of consent or prior relationship with [CSC Holdings], [he] began receiving unsolicited text messages to his wireless phone from the short code 608-91, a number owned by CSC Holdings.” Zemel at *4. Apparently it was the use of a shortcode that allowed the “plausible” inference of ATDS usage in this case.  See Zemel at *4, (citing In re Jiffy Lube Int’l, Inc., Text Spam Litig., 847 F. Supp. 2d at 1260 from proposition that presence of “short code” sending number was a factor indicating ATDS use despite preexisting personal relationship between parties).

Next the Court turns its attention to whether or not Plaintiff consented to Defendant’s second text by sending a “HELP” message, and here’s where things get interesting.  The Court constructs this pristine and helpful one-line rule:

When an individual sends a message inviting a responsive text, there is no TCPA violation.

Zemel at * 4

How perfect is that?

Relying on that simple rule the Court quickly determines that Defendant’s message sent in response to the HELP request was made with express consent and dismissed all claims related to the responsive text message.

Notably the Court also denied a stay on primary jurisdiction grounds– because no one wants to wait for the FCC to rule it seems. It does, however, allow leave to the Defendant to renew its request for a stay in the event the FCC has not ruled on the definition of ATDS by the close of discovery.