Earlier this month, the United States Court of Appeals for the Seventh Circuit in Blow v. Bijora upheld a lower court decision rejecting a plaintiff’s claim that she did not consent to receive text messages from the defendant retailer. Plaintiff brought this class action seeking $1.8 billion in damages by alleging that the company’s practice of sending promotional text messages violated the Telephone Consumer Protection Act (“TCPA”) and related state law.

The case involved a Chicago-based retailer, Akira, that engaged a separate company to offer text message marketing services. The text messages informed customers of promotions, discounts, and in-store events. Akira used a variety of methods to collect customers’ cell phone numbers – customers could opt in by providing their cell numbers in the store, by texting to an opt-in number posted in the store, or by filling out an opt-in card.

Plaintiff alleged that Akira violated the TCPA’s prohibition against using an automatic telephone dialing system to make calls without the express consent of the recipient. The court noted that it was undisputed that text messages to a cell phone constitute “calls” within the meaning of the TCPA. The lower court concluded that the system used did not involve an autodialer to send the promotional text messages. Following a detailed analysis of the TCPA and related regulations, the appellate court concluded there were unresolved issues as to whether the system used was in fact a prohibited autodialer. As such, the court concluded that it was premature to grant summary judgment to Akira on the issue of the autodialer.

Nevertheless, the Seventh Circuit granted summary judgment to Akira finding that Plaintiff had in fact consented to receive the text messages. The record demonstrated that she gave her cell phone number to Akira on several different occasions in addition to signing up for a “frequent buyer card” that included her phone number. In addition, upon receipt of her first text message, Plaintiff admitted that she had to confirm agreement by texting “AKIRA” to a short code number and that she received a message instructing that she could end her participation by texting “STOP.” Based on this evidence, the appeals court concluded that Plaintiff had provided express consent to receipt of the text messages.

Although the company prevailed, it is important for companies using this technology to be mindful of the significant regulations that are applicable. Text message (or SMS) promotional marketing is gaining steam as many consumers have migrated to mobile platforms. Any entity that seeks to avail itself of this service must be mindful of the legal and regulatory guidelines that govern text message communications. Similarly, if contracting out these services, companies should ensure that their vendors are compliant with all regulatory requirements.