On January 30, 2017 the Ninth Circuit Court of Appeals issued an opinion in a Telephone Consumer Protection Act (TCPA) case that could have far reaching ramifications on the issues of express consent and revocation of consent to be contacted. The case is Van Patten v. Vertical Fitness Group, LLC (Case No. 14-55980, U.S. Court of Appeals for the Ninth Circuit). 

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Background

On March 21, 2009, Plaintiff-Appellant Bradley Van Patten visited a Gold’s Gym franchise in Green Bay, Wisconsin to obtain information about a gym membership.

During the visit, Van Patten submitted a desk courtesy card to the gym, wherein he wrote his demographic, financial, and contact information to determine whether he was prequalified to become a member. In this data Van Patten listed his cell phone number.

Van Patten then met with the gym’s manager to discuss the possibility of a membership. During this conversation, the manager filled out a Gold’s Gym Membership Agreement on behalf of Van Patten, which Van Patten signed. The manager wrote Van Patten’s cell phone number in the phone number field. Within three days of opening his gym membership, Van Patten called Gold’s Gym to cancel his membership. Van Patten moved to California in the summer of 2009, but he kept his Wisconsin cell phone number.

Vertical Fitness owned or managed several of the Gold’s Gym franchises. Although Vertical Fitness did not own the gym Van Patten joined, it operated and managed the gym. In the spring of 2012, many of the Gold’s Gym franchises in Wisconsin and Minnesota, including the gym that Van Patten had joined, ended their franchise relationships with Gold’s Gym and became “Xperience Fitness” gyms. Vertical Fitness owned the “Xperience Fitness” brand and trademark.

After the brand change, Vertical Fitness turned to its marketing partner, Defendant-Appellee Advecor, Inc., (Advecor) to help announce the gym’s brand change to current and former gym members and invite members to return. One such announcement was made via text messages. Vertical Fitness gave the phone numbers of former or inactive gym members to Advecor, and Advecor sent the text messages. Van Patten received his first text message on May 14, 2012. The message read: 

“Golds [sic] Gym is now Xperience Fitness. Come back for $9.99/mo, no commitment. Enter for a chance to win a Nissan Xterra! Visit Myxperiencefitness.com/giveaway” 

He received a similar text on June 25, 2012.

Van Patten filed a putative class action lawsuit arising out of the text messages on June 28, 2012. He alleged that the unauthorized text messages Defendants sent “caused consumers actual harm,” including “the aggravation that necessarily accompanies wireless spam” and that consumers “pay their cell phone service providers for the receipt of such wireless spam.” Van Patten asserted three causes of action: (1) violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227; (2) violation of California Business and Professions Code § 17538.41; and (3) violation of California Business and Professions Code § 17200. 

The district court granted Van Patten leave to file a first amended complaint, in which he added Advecor as a defendant and added the allegation that he received two text messages. 

The district court granted Van Patten’s motion for class certification, but on May 20, 2014, the court granted summary judgment in favor of Defendants on all of Van Patten’s claims. 

On appeal, Van Patten argued that the district court erred by granting Defendants’ motions for summary judgment on all three of his claims. A copy of the court’s opinion can be found here

The Court’s Opinion

The three judge panel for the Ninth Circuit concluded that, in this case, the plaintiff gave prior express consent to receive the text messages at issue and did not effectively revoke his consent. The panel affirmed the district court’s grant of summary judgment in favor of the Defendants. 

On the issue of “express consent” the court held: 

“Express consent is not an element of a plaintiff’s prima facie case but is an affirmative defense for which the defendant bears the burden of proof. The district court correctly stated that prior express consent is a complete defense to Van Patten’s TCPA claim. Van Patten v. Vertical Fitness Grp., LLC, 22 F. Supp. 3d 1069, 1073 (S.D. Cal. 2014). 

Because the TCPA does not define the phrase “prior express consent,” we turn to the FCC’s Orders and Rulings, which interpret and clarify the term. Defendants rely on In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752 (Oct. 16, 1992) (the “1992 Order”) and stress one sentence in particular: “[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” 7 F.C.C. Rcd. at 8769. 

In our view, an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages. Taking into account the statutory language that prior consent must be “express” and the TCPA’s legislative history, we do not read the 1992 Order to mean that the FCC has determined that providing a phone number in itself means that the consumer has expressly consented to contact for any purpose whatsoever. Instead, the consent must be considered to relate to the type of transaction that evoked it. 

We conclude that the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason. Instead, FCC orders and rulings show that the transactional context matters in determining the scope of a consumer’s consent to contact.

In this case, we hold that as a matter of law Van Patten gave prior express consent to receive Defendants’ text messages. He gave his cellular telephone number for the purpose of a gym membership contract with a Gold’s Gym franchised gym. Van Patten giving his phone number for the purpose of his gym membership agreement did not amount to consent to be contacted for all purposes. Under the logic of the FCC’s orders, Van Patten gave his consent to being contacted about some things, such as follow-up questions about his gym membership application, but not to all communications. The scope of his consent included the text messages’ invitation to “come back” and reactivate his gym membership. The text messages at issue here were part of a campaign to get former and inactive gym members to return, and thus related to the reason Van Patten gave his number in the first place, to apply for a gym membership.”

insideARM Perspective

This is a very interesting case on the issues of “express consent” and effective “revocation of express consent.”  The court found that the consumer, by providing his cell phone number on a “courtesy card” (whatever that might be) and then allowing the gym manager to add his cell number in a membership application that the consumer signed, had “expressly consented” to marketing test messages.  

Then the court held that cancelling the gym membership was not a “revocation of consent” to be contacted with marketing text messages on his cell phone in the future.  

This case greatly expands the possibilities available to defend TCPA cases in the future on the issues of “express consent” and effective “revocation of consent.”  It will bear watching to see how defendants in future cases use this decision in their arguments.

 


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