Van Patten v. Vertifical Fitness Group, 1/30/17, 9th Cir.
In this TCPA class action, consumer signed an application for gym membership that included his cell phone as his contact number. He almost immediately canceled the membership. A few years later, the gym hired a marketing company that sent two “come-back” text messages to former members. Consumer received two such messages and found them “aggravating.” He rushed to court, filing a class action three days after receiving the last message. (So much for American toughness.) The trial court granted class certification, and then granted defendant’s motion for summary judgment. Held: Affirmed.
TCPA makes it “unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . .” 47 U.S.C. § 227(b)(1)(C). The TCPA has a laundry list of do’s and don’ts, applies to advertising calls for property, goods and services, applies to automatically dialing systems and pre-recorded messages, and also applies to both calls and texts. There is no TCPA claim where the consumer has given consent—which is an affirmative defense.
The court discussed whether consumer’s aggravation claim gave him Article III standing, which requires ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” In a recent Supreme Court case (Spokeo), the court held that mere violation of a statute doesn’t automatically lead to injury in fact that satisfies Article III standing, although intangible injuries can satisfy the concrete element. Some courts have conflated the concrete and particularized elements, and the Supreme Court emphasized that a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”
Here 9C held that violation of the TCPA is a concrete, de facto injury, likening the violation of TCPA to traditional torts that involve an invasion of privacy. As interesting as all of this is, it seems strange that a court would need to analyze whether rights conferred by Congress, including a private right of action, are sufficient to create Article III standing. To me, it almost goes without saying. But who am I?
As to consent, the FCC has regulations on what prior express consent means. One regulation provides: “[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.” 9C rejected the argument that providing a telephone number operates as a consent to any and all contact, and instead examined whether consumer’s consent and the subsequent text messages “related to the same subject matter” and suggested that it must “relate to the type of transaction that evoked it.” This matches FCC’s 2008 rules on this issue which suggested that providing a cell number does not evoke consent to be contacted for any purpose. For example, the FCC has “conclude[d] that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.”
In 2012, the FCC imposed further restrictions on telemarketing calls and required prior express written consent for texts and calls that “include[] or introduce[] an advertisement” or “constitute[]telemarketing.” See 47 C.F.R. § 64.1200(a)(2). Here, the contact took place before that rule went into effect.
9C held that consumer provided his number on his gym application and that was related to subsequent “come-back” texts inviting him to reconsider membership. Finally, cancelling gym membership does not by itself operate to revoke consent for purposes of TCPA. TCPA does not explicitly allow consumers to revoke their consents, but the trend is to allow consumers to do so, a position with which the FCC agrees. But revocation must be clearly made and consumer failed to tell defendants to stop calling him.
His claims under California’s UCL (unfair competition law) also failed: UCL standing is more restrictive than Article III standing, and requires economic injury. Apparently, aggravation wasn’t enough (thankfully!).