The Eastern District of California recently entered summary judgment against a plaintiff because it found that the plaintiff failed to revoke his consent to receive auto-dialed calls on his cell phone.  Wright v. USAA Savings Bank, No. 19-0591, 2020 WL 2615441, at *1-5 (E.D. Cal. May 22, 2020).  The case illustrates that defendants in the Ninth Circuit can still prevail on consent and other issues even though they may face an uphill battle on ATDS issues.

The plaintiff in Wright applied for a credit card and listed his cell phone number on the application.  Id. at *1. He developed terminal cancer in 2018 and failed to make payments on the credit card.  Id. Between July 2018 and January 2019, defendants’ agent called Mr. Wright’s cellphone number using the Aspect Dialing System to collect the credit card debt. Id. Evidence established that the Aspect Dialing System is a predictive dialer that does not have and is not capable of using a random or sequential number generator to dial numbers. Id.

Mr. Wright hired a lawyer, who then sent a revocation of consent letter to defendants’ headquarters in Las Vegas. Id. However, defendants used a Texas address on all of their correspondence with Mr. Wright. Id. They also used the Texas address: (1) as the address for making payments; (2) in each delinquent payment notification; and (3) on the “Contact Us” page on their website.

Mr. Wright eventually filed suit but died a short time later. Id. at *2. The court granted his wife authority to substitute as plaintiff in the action. Id. Mr. Wright’s complaint asserted a TCPA claim as well as other statutory violations. Id. The parties filed cross-motions for summary judgment. Id.

First, defendants argued that the Aspect Dialing System at issue was not an ATDS. Id. at *3.  Defendants asserted that Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), should not control the outcome of the ATDS dispute because the D.C. Circuit’s ACC International decision invalidated the FCC’s 2003, 2012 and 2015 Orders but not the FCC’s 1992 and 1995 Orders, “which conclude that to be an ATDS the system must itself generate numbers ‘in random or sequential fashion.’”  Id. (quoting In Re Rules & Regulations Implementing the TCPA of 1991, 7 F.C.C. Rcd. 8752, 8769 ¶ 47 (1992); citing In Re Rules and Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, ¶ 19 (1995)). The court rejected the argument, finding that it was “bound by Marks.” Id. The court also noted that the subsequent decision in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir 2019), confirmed that Marks is the law in the Ninth Circuit.

Second, the parties disputed whether Mr. Wright effectively revoked his consent. Id. Under the facts presented, the court held that “no reasonable trier of fact could find that plaintiff used reasonable means to revoke consent.”  Id. (citing ACA Int’l v. FCC, 885 F.3d 687, 709 (D.C. Cir. 2018) (“In assessing whether a revocation request meets the ‘reasonable means’ standard,”’ courts consider “the totality of the facts and circumstances.”)). The court observed that “[d]efendants never made the Las Vegas address known to customers, nor did they communicate to its customers that the Las Vegas address was an appropriate destination for customers’ account-related inquiries.” Id. Furthermore, Mr. Wright was not even able to establish that defendants received the revocation letter. Id. at *5.  The only evidence of receipt was a UPS confirmation notice stating that the letter was “delivered to the front desk, reception area, or mail room . . . in LAS VEGAS NV 89169.”  Id.  Defendants presented evidence that they did not own or control the front desk, and that defendants did not sign for, and could not control the receipt of, correspondence at the Las Vegas address. Id. Thus, the court granted defendants’ motion for summary judgment because the plaintiff did not effectively revoke consent to receive the calls at issue. Id.

In light of the unfavorable Marks ruling, companies facing TCPA claims in the Ninth Circuit should consider raising other fact-based defenses that do not relate to the definition of an ATDS.  As the Wright decision highlights, an examination of the facts surrounding a plaintiff’s supposed revocation of consent could lead to a successful dispositive motion.