Menin v. Star Markets: No 30-Day Safe Harbor for Texts Sent After a STOP Request

Allegations

The plaintiff received a "Weekly Ad" text in June 2023 and replied "STOP" on June 23. She received a same-day confirmation that she had opted out. She then received promotional texts on June 30, July 7, and July 14. She replied "STOP" again on July 7 and again received a confirmation. She alleged that she used her cell phone for personal purposes as her residential line and that the company had transmission reports and logs of inbound opt-out requests.

Private Right of Action Under the Internal Do-Not-Call Rules

The defendant argued that 47 C.F.R. § 64.1200(d) was promulgated under 47 U.S.C. § 227(d), the technical and procedural standards provision, which has no private right of action. The court disagreed. The First Circuit has not squarely decided the question, but the Eleventh Circuit in Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019), and the Sixth Circuit have treated § 64.1200(d) as enforceable through § 227(c)(5). The court followed the majority rule: the written policy, training, and recordkeeping requirements are substantive privacy protections that fit § 227(c), while § 227(d) addresses caller identification.

The Claims Were Plausibly Pled

Written policy. A plaintiff need not request a copy of the company's do-not-call policy before suing. A request can bolster a claim but is not a pleading requirement. Repeated texts after two confirmed opt-outs, combined with the company's access to opt-out logs, supported an inference that no adequate written procedures existed.

Training. The same facts plausibly suggested that personnel were not properly trained in implementing a do-not-call policy, even though texts, unlike live calls, give the recipient no chance to question an employee.

Honoring requests within a reasonable time. The defendant argued the last text arrived 21 days after the first STOP, within the 30-day limit in § 64.1200(d)(3). The court held that the regulation requires compliance within a "reasonable time" and only caps that period at 30 days. It does not make any shorter delay reasonable per se. What is reasonable is a question of fact.

The defendant pointed to the Federal Communications Commission (FCC) 2024 order shortening the deadline to 10 business days as proof that the old rule allowed 30 days. The court read it the other way: the FCC recognized that opt-outs can be processed quickly and should be honored as soon as practicable. Here, three texts over three weeks could not be found reasonable as a matter of law.

Practical Implications

Senders should not treat 30 days, or now 10 business days, as a compliance window to keep marketing. Once a confirmation of opt-out is sent, any later promotional message is strong evidence that procedures failed. Opt-out processing should be automated and immediate, and written policies and training records should be ready to produce.

Read the District of Massachusetts decision in Menin v. Star Markets.