/>iHey TCPAWorld!
Another day, another gem.
As you folks know, we all have the ability to consent or opt-in to receive calls and text messages. But we also have the ability to revoke any such consent.
So how fast does a company have to process a revocation?
Under 64.1200(d)(3), an entity making calls to a residential phone for telemarketing purposes “must honor a residential subscriber’s do-not-call request within a reasonable time from the date such request is made. This period may not exceed thirty days from the date of such request.” 47 C.F.R. § 64.1200(d)(3) (emphasis added). This is also known as the 30-day safe harbor.
In Miller v. Jaxkelly, Inc., No. 3:24-CV-03043, (S.D. Cal. Dec. 11, 2024), Plaintiff Miller alleges that she opted into Defendant Jaxkelly’s marketing campaign around November 13, 2021. However, on January 28, 2023, she opted out with a “STOP” text. Allegedly, Jaxkelly acknowledged receipt of her request, however, sent her another marketing text on May 29, 2023, stating:
JaxKelly: Hey! This is your last chance to save big on our Memorial Day sale! Up to 40% off ends tonight! https://jaxkelly.smsb.co/5Vo0mo No code needed.
Was JaxKelly’s text above a violation? Well, it likely was because it was made outside of the 30-day safe harbor window. Of course, Miller texted “STOP” again. But then Jaxkelly proceeded to send her — not just one or two, but 22 — telemarketing messages to her residential number thereafter. Woah. What happened here?
In light of these accusations, Miller filed a Complaint in the Southern District of California alleging Jaxkelly violated DNCR provisions, 47 U.S.C. 227(c)(5) and 47 C.F.R. § 64.1200(d), for refusing to honor her opt-out requests, which is indicative of Jaxkelly’s failure to implement and maintain an internal DNC list as required by the TCPA.
Miller seeks to represent the following class:
All persons within the United States who, within the four years prior to the filing of this Complaint through the date of class certification, (1) were sent more than one text message within any 12 month period, (2) regarding Defendant’s goods, products or services, (3) to said person’s residential cellular telephone number, (4) after making a request to Defendant to not receive further text messages by replying with a “stop” or similar opt-out instruction in response to Defendant’s text message(s).
(“Internal Do Not Call Class”)
This case is a reminder that internal DNC lists are not to be neglected. It’s not sufficient to simply have a DNC list. Businesses must also make sure their DNC list is properly maintained and appropriate procedures are in place to ensure compliance.
