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WBK Industry News - Litigation Developments

Ninth Circuit Holds TCPA Revocation of Consent Must be Clearly Expressed

A panel for the United States Court of Appeals for the Ninth Circuit recently held that, under the Telephone Consumer Protection Act (TCPA), a consumer can revoke prior express consent to receive messages or calls, but must clearly express the revocation for it to be effective.

As background, the plaintiff brought a putative class action against a gym, of which the plaintiff had formerly been a member. The plaintiff alleged that on March 21, 2009, he had given the gym his telephone number during the process of his enrollment in a gym membership, and then cancelled his membership three days later. The gym subsequently underwent rebranding, and in 2012 sent messages to former or inactive gym members to encourage them to rejoin. The plaintiff brought suit under the TCPA and two California state consumer protection laws. The gym argued that the plaintiff had not alleged a sufficient injury-in-fact to confer Article III standing. The parties also disputed whether the plaintiff had given express consent, and if so, whether the consent had been effectively revoked.

The Ninth Circuit panel first held that the plaintiff had suffered a sufficient injury in fact to confer Article III standing. Citing the recent Supreme Court decision in Spokeo, Inc. v. Robins, the Ninth Circuit noted that standing requires a “concrete injury even in the context of a statutory violation.” However, here, the legislative history showed that Congress sought to protect consumers from the kind of unwanted intrusion and nuisance traditionally prohibited by privacy laws. The text messages at issue in the case, if unsolicited, presented the harm and infringed on the privacy interests Congress sought to protect against in the TCPA. Therefore the plaintiff had alleged a concrete injury in fact to confer Article III standing.

Next, the gym argued that a consumer consented to any and all messages when providing a telephone number. Relying on the Federal Communications Commission’s (FCC) orders and rulings, the Ninth Circuit held that the scope of express consent is limited to the circumstances under which it is provided. The plaintiff did not consent to any and all contact. But because the text messages at issue were regarding a campaign to bring former and inactive gym members back to the gym, they were related to the reason the plaintiff gave consent in the first place. The plaintiff had therefore provided prior express consent to the messages at issue.

The plaintiff argued that even if he had provided prior express consent, he had revoked it when he cancelled his gym membership. The Ninth Circuit, again relying on the FCC’s orders and rulings, as well as similar opinions in the Eleventh and Third Circuits, found that it is possible to revoke prior express consent without any time limitation. However, revocation must be made clearly and express a desire not to be contacted. There was no evidence that the cancellation of the gym membership communicated to the gym that the plaintiff desired the gym to cease contacting him. The plaintiff also could have revoked consent by plainly telling the gym not to contact him or by sending the message “STOP” when the gym began to text him with offers to rejoin. The plaintiff’s cancellation of his gym membership did not revoke the plaintiff’s prior express consent to the messages.

Finally, the Ninth Circuit found that the plaintiff had no standing to pursue claims under the California consumer protection statutes at issue, which require an economic injury. The evidence had shown that the plaintiff had an unlimited texting plan, so he was not charged for the text messages. In addition, any argument that increased text message traffic inflated costs because of any burden to the carrier was too speculative. Those claims were therefore properly dismissed.

The case is Van Patten v. Vertical Fitness Group, LLC, and the Ninth Circuit panel opinion is available here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/30/14-55980.pdf.