In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages.

Plaintiff in Van Patten v. Vertical Fitness, No. 14-55980 (9th Cir. Jan. 30, 2017) had provided his mobile number in opening a membership at a Gold’s Gym in Wisconsin in 2009. After three days, Van Patten cancelled his membership, and later that year moved to California. In 2012, the Wisconsin gym terminated its franchise relationship with Gold’s Gym and became an Xperience Fitness gym. Plaintiff then received two text messages, advising that “Golds Gym is now Xperience Fitness” and soliciting him to “[c]ome back for $9.99/mo, no commitment.”

Three days after the second text, Van Patten filed a class action lawsuit, alleging that the texts were sent in violation of the TCPA and UCL, and a California statute that prohibits text message advertisements. After certifying a nationwide class as to Van Patten’s TCPA claim, the court granted defendants’ motion for summary judgment on the ground that plaintiff had affirmatively consented to the texts. Plaintiff appealed.

On the threshold issue of standing, the Ninth Circuit found that the “concrete injury” requirement of Article III was satisfied. The Court cited Congressional findings, made at the time of enactment of the TCPA in 1991, as to the invasion of privacy and nuisance that may result from unsolicited telemarketing phone calls and faxes to residences and offices. Without further analysis, the Court extrapolated from these findings to the conclusion that an unsolicited text message may constitute a similar invasion of privacy or nuisance.

Congress, however, made no such finding as to text messaging in 1991, as SMS messaging was not available until 1992. Nor did the Court explain how a text message sent when a phone was turned off or set aside by the user might result in an invasion of privacy or nuisance. And as the Court otherwise acknowledged (in rejecting plaintiff’s standing under the UCL), plaintiff had not incurred economic injury, as plaintiff had an unlimited text messaging plan with his carrier.

However, the Court affirmed the grant of summary judgment on the key issue of consent. While acknowledging that consumers may revoke their prior express consent, the Court held that such revocation could not be inferred from the customer’s conduct, and instead “must be clearly made and express a desire not to be called or texted.” Because Van Patten did not contact defendants, either when he cancelled his membership or by messaging STOP in response, defendants were entitled to judgment.

This portion of the Court’s holding affirms a common-sense approach. By requiring customers to clearly revoke their prior consent, the Van Patten decision recognizes that consumers as a practical matter must bear the burden of showing their express revocation in no uncertain terms.