Tom v. Delancey Street: Replying "Yes" to a Text Is Consent, Even If Feigned

The Exchange

The plaintiff's cell number had been on the National Do Not Call Registry since at least March 2024. On March 6, 2025, MJA Holdings, Inc., a lead generator doing business as "MCA Justice," texted him offering to cut his daily or weekly payments by 80 percent, adding "Reply 'Yes' for more information" and "Text STOP to opt out." He replied "Yes," provided an email address, and then wrote: "Don't text me email me only," explaining that he was about to board a plane without cell signal. The sender then emailed him and sent four follow-up texts through March 10 asking whether he had reviewed the email. By email, MJA identified itself as a marketing arm for Delancey Street, a debt restructuring company.

Feigned Interest Is Still Consent

The plaintiff alleged he replied only to identify the sender and argued that "playing along" is not consent. The court rejected this argument. One case he cited addressed standing under a different provision, and the other was later reversed on reconsideration. The court knew of no case holding that consent is ineffective simply because it is given only to identify the sender.

The Email Request Was Not a Revocation

Under 47 C.F.R. § 64.1200(a)(10), certain words like "stop" or "unsubscribe" are presumptive revocations. Other words count only if a reasonable person would understand them as revoking consent. The court held that a reasonable person would read the plaintiff's message as a temporary preference for email due to the lack of cell service on a flight, not a permanent revocation. The follow-up texts, which asked about the email, showed MJA read it that way too. Even if it were, MJA stopped within four days, well inside the ten business day limit.

Only Violative Calls Count

The plaintiff argued that § 227(c)(5) has separate "numerosity" and "violations" gates, so non-violative texts count toward the threshold. The court rejected this reading. The statute requires "more than one telephone call . . . in violation of the regulations."

Caller Identification

The plaintiff also alleged that every text violated the caller identification rule in 47 C.F.R. § 64.1601(e)(1). Noting a split among district courts and no controlling Second Circuit authority, the court followed the majority approach that the rule carries no private right of action under § 227(c)(5). Other courts disagree.

Issues Not Reached

The court did not decide whether the number was residential, whether Delancey was vicariously liable, or whether texts are "calls" under § 227(c)(5), noting the Seventh Circuit's July 2026 decision in Steidinger v. Blackstone Medical Services holding they are not.

Practical Points

• Revocation language is judged objectively. A channel preference tied to a temporary circumstance may not revoke consent.
• Count only violative calls. Consensual messages do not help meet the threshold.
• Leave to amend can be futile. Because the entire text exchange was already pleaded, amendment could not cure the defect.

Read the Eastern District of New York memorandum and order.