On April 18, 2013, the US District Court for the Central District of California issued a decision in Emmanuel v. Los Angeles Lakers, Inc., holding that, under the Telephone Consumer Protection Act (TCPA), by sending a text message to a marketer, a consumer expressly consents to receiving a confirmatory text message response from the marketer.

In the Emmanuel case, the plaintiff attended a Los Angeles Lakers (Lakers) basketball game during which the Lakers invited attendees to send a text message to a specified telephone number controlled by the Lakers to get a chance to have the message appear on the scoreboard. In response, the plaintiff sent the Lakers a text message. The plaintiff then received back a confirmatory text message stating:

The plaintiff alleged that the Lakers' confirmatory text message violated the TCPA's prohibition against sending a consumer a text message without the consumer's prior consent.

The District Court took what it called a common sense approach and ruled that by sending his original message, the plaintiff expressly agreed to receive a confirmatory text message in return. The Court reasoned that the Lakers' confirmatory text message was not the type of invasive communication prohibited by the TCPA because the confirmatory message directly responded to the plaintiff's text message. The Court also noted that:

After Emmanuel, mobile marketers may now have an easier time proving consumer consent when defending unsolicited text message suits under the TCPA.

For more information on the TCPA, see Practice Note, Direct Marketing.

For more information on text message marketing, see Article, Mobile Marketing: What Companies Need to Know.