A restaurant’s specials promotion embedded in a dinner reservation confirmation text doesn’t violate a federal robocall law, according to a federal district court opinion.
Plaintiff Steve MacKinnon gave his phone number to Lucille’s Smokehouse Bar-B-Que after making a dinner reservation to receive a confirmation text. But then he sued because the text also included a link to the night’s specials. He alleged the restaurant sent an unsolicited marketing message without written consent.
The U.S. District Court for the Eastern District of California tossed the complaint. It said that the restaurant didn’t run afoul of the Telephone Consumer Protection Act because the reservation confirmation text was a non-advertising message.
The law requires prior express written consent for robocalls or texts that include advertising. Consent need not be in writing for non-advertising messages.
The court said the reservation confirmation was purely informative, and a link to the specials would simply allow MacKinnon to see the options before buying the meal he planned to have. According to the court, “the phrase ‘View specials’ does not somehow convert the text message into an advertisement.”
MacKinnon consented to the text by giving his number to the restaurant, the court said, and written consent wasn’t required.
Joshua Briones, counsel for the restaurant operator and attorney at Mintz Levin in Los Angeles, told Bloomberg Law the decision should “provide comfort to any brand seeking to improve their customers’ experience by responding with text messages to their customers’ request.”
An attorney for MacKinnon didn’t immediately respond to a request for comment.
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