Ninth Circuit Further De-Fangs Spokeo in a TCPA Case; Gives Practical Revocation Guidance for the First Time

The important TCPA cases keep rolling in.

Yesterday the Ninth Circuit issued a big new decision addressing three of my favorite topics: Spokeo, express consent, and revocation. The decision provides quite a bit to chew on. See Van Patten v. Vertical Fitness Group, 2017 U.S. App. LEXIS 1591 (Jan. 30, 2017).

As to Spokeo, the Court found that the TCPA “establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent.” As such the Court found the receipt of unsolicited telemarketing phone calls or text messages, “by their nature, invade the privacy and disturb the solitude of their recipients.” As a result the Court refused to dismiss the case for lack of Article III standing. Notably, the case was decided in the context of a telemarketing text message, however, so there is at least some basis to distinguish the decision outside of the telemarketing context.

Also, now that courts might apply strict scrutiny to the TCPA (see yesterday’s update) it might be important that the Ninth Circuit found “Congress sought to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements.” If that is the “compelling” governmental interest Congress sought to address in enacting the TCPA, then the statute is not “narrowly tailored” to that end since it restricts more speech than necessary to accomplish the statute’s objective. Van Patten and Brickman read together, therefore, may give industry a potent First Amendment challenge with respect to informational calls—at least in the Ninth Circuit.

The decision is also interesting for a couple of other important reasons as well:

1. The Ninth Circuit backed away from its ruling in Meyer that express consent is an element of a TCPA claim; it now confirms it is an affirmative defense, which is consistent with the law in other circuits.
2. The Ninth Circuit again confirmed that providing a cell number is sufficient to constitute “express consent” and refused to apply the FCC’s written express consent rule retroactively to conduct that took place before the rule was enacted (something to keep in mind in cases where the challenged conduct occurred before a subsequent FCC order changed the playing field).
3. The Ninth Circuit concluded that consent can be revoked but that revocation must “clearly express” a “desire not to receive further text messages.” The Court gave the following examples of acceptable revocations:
   1. “Plainly telling Defendants not to contact him on his cell phone when he called to cancel his gym membership”; or
   2. “messaging ‘STOP’ after receiving the first text message.”

The revocation discussion appears to be the first practical discussion of revocation by a circuit court of appeals. The decision is definitely worth taking into consideration when drafting revocation and consent policies.