On April 22, the U.S. District Court for the District of Arizona granted in part and denied in part a defendant’s motion to dismiss a complaint alleging violations of the Telephone Consumer Protection Act (TCPA) as well as state consumer fraud and common law claims. The pro se plaintiff alleged that a convenience store chain and a mobile marketing company (the defendants) sent him 350 unsolicited marketing text messages between September 2023 and February 2026 despite his phone number being registered on the National Do Not Call Registry since 2004. The court rejected the defendant’s argument that the TCPA does not apply to text messages, citing “binding” 9th Circuit precedent (previously covered by InfoBytes here) holding that a text message constitutes a “call” under the TCPA. The court also found the plaintiff plausibly alleged the messages were telephone solicitations and declined to consider 72 pages of “extrinsic evidence” purporting to show that the texts at issue are outside of the TCPA.

Accordingly, the court denied the defendants’ motion with respect to the plaintiff’s four TCPA claims and his common law intrusion upon seclusion claim, finding that 349 allegedly unwanted messages over approximately nine months — 146 of which arrived before 8 a.m. — plausibly constituted a “course of hounding” that was highly offensive to a reasonable person. However, the court dismissed with prejudice the plaintiff’s Arizona Consumer Fraud Act claim, holding that the defendants’ messages confirming the plaintiff’s opt-out requests did not constitute “material representations and false promises” under the statute because they did not relate to the sale or advertisement of merchandise as the statute requires. The court also dismissed with prejudice the plaintiff’s breach of implied-in-fact contract and promissory estoppel claim, finding no legal support for the theory that opting out of a messaging system creates contractual obligations.