Bradley Van Patten v. Vertical Fitness Group , 847 F.3d 1037 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY VAN PATTEN, an No. 14-55980
individual, on behalf of himself and
all others similarly situated, D.C. No.
Plaintiff-Appellant, 3:12-cv-01614-
LAB-MDD
v.
VERTICAL FITNESS GROUP, LLC, a OPINION
limited liability company; ADVECOR,
INC., a California corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted May 4, 2016
Pasadena, California
Filed January 30, 2017
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Gould
*
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 VAN PATTEN V. VERTICAL FITNESS GROUP
SUMMARY**
Telephone Consumer Protection Act
The panel affirmed the district court’s grant of summary
judgment in favor of the defendants in an action under the
Telephone Consumer Protection Act regarding text messages
about a gym membership.
The panel held that under Spokeo, Inc. v. Robins, 136
S. Ct. 1540 (2016), the plaintiff alleged a concrete injury
sufficient to confer Article III standing to pursue his TCPA
claim.
The panel held that, for purposes of the TCPA, the scope
of a consumer’s consent to being contacted depends on the
transactional context in which it is given. Citing FCC orders,
the panel held that an effective consent is one that relates to
the same subject matter as is covered by the challenged calls
or text messages. Agreeing with other circuits, the panel held
that a consumer may revoke his or her consent but in that case
must clearly express that he or she does not want to receive
the messages or calls. The panel 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.
Affirming the district court’s summary judgment on
claims asserting violations of California Business and
Professional Code §§ 17583.41 and 17200, the panel held that
the plaintiff did not establish economic standing.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VAN PATTEN V. VERTICAL FITNESS GROUP 3
COUNSEL
George Rikos (argued), Law Offices of George Rikos, San
Diego, California; Craig M. Nicholas and Alex M.
Tomasevic, Nicholas & Tomasevic LLP, San Diego,
California; for Plaintiff-Appellant.
Alexander Papaefthimiou (argued), Law Office of Alexander
E. Papaefthimiou, Camarillo, California; Gregory M.
Harrison, Gregory M. Harrison APC, San Diego, California;
for Defendant-Appellee Advecor, Inc.
Mark E. Ellis (argued), Ellis Law Group LLP, Sacramento,
California, for Defendant-Appellee Vertical Fitness Group
LLC.
Brian Melendez, Dykema Gossett PLLC, Minneapolis,
Minnesota, for Amicus Curiae ACA International.
OPINION
GOULD, Circuit Judge:
This is a consumer protection case arising from text
messages about a gym membership. The parties dispute the
scope of the consumer’s consent to being contacted after he
gave his cell phone number while signing up for a gym
membership, and whether he revoked his consent when he
cancelled the membership. For purposes of the Telephone
Consumer Protection Act of 1991 (TCPA), we hold that the
scope of a consumer’s consent depends on the transactional
context in which it is given. The call or text message must be
based on the circumstance in which the consumer gave his or
4 VAN PATTEN V. VERTICAL FITNESS GROUP
her number. The consumer may revoke his or her consent but
in that case must clearly express that he or she does not want
to receive the messages or calls.
For the reasons that follow, we conclude that Plaintiff-
Appellant Bradley Van Patten gave prior express consent to
receive the text messages at issue, and did not effectively
revoke his consent, hence dooming his TCPA claim. Also, as
for his claims under California law asserting violations of
California Business and Professions Code §§ 17583.41 and
17200, Van Patten did not establish economic standing. We
affirm the district court’s grant of summary judgment in favor
of Defendant-Appellees Vertical Fitness Group, LLC and
Advecor, Inc.
I
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 pre-
qualified to become a member. In this data Van Patten listed
his cell phone number as his contact number.
Van Patten then met with the gym’s manager, an
employee of Defendant-Appellee Vertical Fitness Group,
LLC, 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
VAN PATTEN V. VERTICAL FITNESS GROUP 5
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., 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
6 VAN PATTEN V. VERTICAL FITNESS GROUP
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,1 but on May 20, 2014, the court granted
summary judgment in favor of Defendants on all of Van
Patten’s claims.
II
On appeal, Van Patten argues that the district court erred
by granting Defendants’ motions for summary judgment on
all three of his claims. We have jurisdiction under 28 U.S.C.
§ 1291. We review a district court’s grant of summary
judgment de novo. See Satterfield v. Simon & Schuster, Inc.,
569 F.3d 946, 950 (9th Cir. 2009). Summary judgment is
appropriate only when “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
We address each of Van Patten’s claims in turn.
1
The district court certified a national class for Van Patten’s TCPA
claim but declined to certify a California-based subclass for Van Patten’s
California Business and Professions Code § 17538.41 and § 17200 claims.
VAN PATTEN V. VERTICAL FITNESS GROUP 7
A. The Telephone Consumer Protection Act of 1991
The 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 generally prohibits making
nonemergency, unsolicited calls advertising “property, goods,
or services” using automatic dialing systems and prerecorded
messages to telephones and cellular phones. Id. § 227(a)(5);
id. § 227 (b)(1)(A)(iii). Although the TCPA does not define
a “call,” the Federal Communications Commission (FCC),
the agency implementing the TCPA, has interpreted the
TCPA to “encompass[ ] both voice calls and text calls to
wireless numbers including, for example, short message
service (SMS) calls,” which are generally referred to as text
messages. In re Rules & Regulations Implementing the
Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd.
14014, 14115 (July 3, 2003) (the “2003 Order”); see also
Satterfield, 569 F.3d at 954 (holding that the FCC’s
interpretation that a text message is a “call” under the TCPA
is reasonable). A call or text is not unsolicited, however,
where the recipient gave the sender “prior express consent.”
47 U.S.C. § 227(b)(1)(A).
1. Article III Standing
Before turning to the merits of Van Patten’s TCPA claim,
we first address whether Van Patten has standing under
Article III of the Constitution. Article III limits federal
judicial power to “Cases” and “Controversies,” U.S. Const.
art. III, § 2, and standing to sue “limits the category of
litigants empowered to maintain a lawsuit in federal court to
seek redress for a legal wrong,” Spokeo, Inc. v. Robins,
8 VAN PATTEN V. VERTICAL FITNESS GROUP
136 S. Ct. 1540, 1547 (2016). To satisfy Article III standing,
“[t]he plaintiff must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Id. (applying the traditional standing test
from Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992)). A plaintiff establishes injury in fact, if he or she
suffered “‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan,
504 U.S. at 560).
The Supreme Court most recently addressed the concrete
injury requirement of standing in Spokeo v. Robins. The
Court reiterated that “Article III standing requires a concrete
injury even in the context of a statutory violation,” and that a
plaintiff does not “automatically satisf[y] the injury-in-fact
requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate
that right.” Id. at 1549. In Spokeo, the plaintiff alleged
violations of the Fair Credit Reporting Act (FCRA), based on
a website’s publication of inaccurate consumer information
regarding the plaintiff’s age, martial status, educational
background, and other demographic information. Id. at 1546.
The FCRA sets procedural requirements for consumer
reporting agencies to ensure that credit reporting is fair and
accurate. See 15 U.S.C. § 1681e. On appeal, the Ninth
Circuit had held that the relevant interests protected by the
FCRA were sufficiently concrete and particularized to satisfy
the requirements of Article III standing. Id. at 1546. The
Supreme Court, however, vacated the judgment and
remanded the case, holding that the standing analysis was
incomplete because we had not distinguished between
concreteness and particularization. Id. at 1550. The Supreme
VAN PATTEN V. VERTICAL FITNESS GROUP 9
Court did not determine whether the plaintiff had suffered an
injury sufficient to confer standing to sue, but 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.” Id. at 1549. The Court also
observed that intangible harms a plaintiff alleges can satisfy
the injury-in-fact requirement. See id. (“[W]e have
confirmed in many of our previous cases that intangible
injuries can nevertheless be concrete.”).
Here, Defendants argue that Van Patten did not establish
a concrete injury-in-fact necessary to pursue his TCPA claim
in light of Spokeo.2 We disagree.
As the Supreme Court explained in Spokeo, “both history
and the judgment of Congress play important roles” in
supporting our conclusion that a violation of the TCPA is a
concrete, de facto injury. Id. Actions to remedy defendants’
invasions of privacy, intrusion upon seclusion, and nuisance
have long been heard by American courts, and the right of
privacy is recognized by most states. See Restatement
(Second) of Torts § 652(B) (Am. Law Inst. 1977). And in
enacting the TCPA, Congress made specific findings that
“unrestricted telemarketing can be an intrusive invasion of
privacy” and are a “nuisance.” Telephone Consumer
Protection Act of 1991, Pub. L. 102–243, § 2, ¶¶ 5, 10, 12,
13, 105 Stat. 2394 (1991); see also Mims v. Arrow Fin.
Servs., LLC, 132 S. Ct. 740, 745 (2012). Congress sought to
protect consumers from the unwanted intrusion and nuisance
of unsolicited telemarketing phone calls and fax
2
After oral argument, we ordered the parties to file supplemental
briefs addressing whether Spokeo affects Van Patten’s standing to bring
his TCPA claim.
10 VAN PATTEN V. VERTICAL FITNESS GROUP
advertisements. See Pub. L. 102–243, § 2, ¶ 12. The session
law for the TCPA itself stated: “Banning such automated or
prerecorded telephone calls to the home, except when the
receiving party consents to receiving the call or when such
calls are necessary in an emergency situation affecting the
health and safety of the consumer, is the only effective means
of protecting telephone consumers from this nuisance and
privacy invasion.” Id. We also have recognized this
congressional purpose. Satterfield, 569 F.3d at 954.
The TCPA establishes the substantive right to be free
from certain types of phone calls and texts absent consumer
consent. Congress identified unsolicited contact as a concrete
harm, and gave consumers a means to redress this harm. We
recognize that Congress has some permissible role in
elevating concrete, de facto injuries previously inadequate in
law “to the status of legally cognizable injuries.” Spokeo,
136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 578). We
defer in part to Congress’s judgment, “because Congress is
well positioned to identify intangible harms that meet
minimum Article III requirements.” Id. We also recognize
that “Congress’ role in identifying and elevating intangible
harms does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person
to sue to vindicate that right.” Id.
Congress aimed to curb telemarketing calls to which
consumers did not consent by prohibiting such conduct and
creating a statutory scheme giving damages if that prohibition
was violated. Unlike in Spokeo, where a violation of a
procedural requirement minimizing reporting inaccuracy may
not cause actual harm or present any material risk of harm,
see id. at 1550, the telemarketing text messages at issue here,
VAN PATTEN V. VERTICAL FITNESS GROUP 11
absent consent, present the precise harm and infringe the
same privacy interests Congress sought to protect in enacting
the TCPA. Unsolicited telemarketing phone calls or text
messages, by their nature, invade the privacy and disturb the
solitude of their recipients. A plaintiff alleging a violation
under the TCPA “need not allege any additional harm beyond
the one Congress has identified.” Id. at 1549 (emphasis in
original). Cf. Gomez v. Campbell-Ewald Co., 136 S. Ct. 663,
672 (2016) (affirming that “the District Court retained
jurisdiction to adjudicate Gomez’s [TCPA] complaint.”).
We hold that Van Patten alleged a concrete injury in fact
sufficient to confer Article III standing.
2. Prior Express Consent
The parties do not dispute that Defendants sent Van
Patten text messages using an automatic telephone dialing
system; we need only assess whether Van Patten gave prior
express consent. Van Patten contends that the district court
erred by granting Defendants’ motion for summary judgment
on his TCPA claim because he never gave “prior express
consent” to receive text messages from Defendants, and even
if he had, he revoked that consent by cancelling his gym
membership. We address those contentions in turn, but
disagree and conclude that Van Patten—based on the context
in which he gave his phone number—consented to receiving
the text messages. Also, Van Patten did not expressly revoke
his consent.
Express consent is not an element of a plaintiff’s prima
facie case but is an affirmative defense for which the
12 VAN PATTEN V. VERTICAL FITNESS GROUP
defendant bears the burden of proof.3 See In the Matter of
Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 23 F.C.C. Rcd. 559, 565 (Jan. 4, 2008) (the
“2008 Order”) (“[W]e conclude that the creditor should be
responsible for demonstrating that the consumer provided
prior express consent . . . . Should a question arise as to
whether express consent was provided, the burden will be on
the creditor to show it obtained the necessary prior express
consent.”); see also Grant v. Capital Mgmt. Servs., L.P.,
449 F. App’x 598, 600 n.1 (9th Cir. 2011) (“‘[E]xpress
consent’ is not an element of a TCPA plaintiff’s prima facie
case, but rather 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). We agree and next address whether there was prior
express consent that was effective here as a defense to the
text messages that were sent.
Because the TCPA does not define the phrase “prior
express consent,” we turn to the FCC’s Orders and Rulings,
3
In Meyer v. Portfolio Recovery Associates, we set out a TCPA claim
as: “(1) the defendant called a cellular telephone number, (2) using an
automatic telephone dialing system, (3) without the recipient’s prior
express consent.” 707 F.3d 1036, 1043 (9th Cir. 2012). We there
discussed prior express consent as a consideration relating to a TCPA
claim analyzed in the context of a preliminary injunction and whether the
plaintiff established that he was likely to succeed on the merits of his
claim. See id. We think it plain from the statutory language that prior
express consent is an affirmative defense, not an element of a TCPA
claim, but we do not retreat from the principle that a plaintiff seeking a
preliminary injunction must show the absence of prior express consent as
pertinent to the likelihood of success on the merits.
VAN PATTEN V. VERTICAL FITNESS GROUP 13
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. Emphasizing this
language, Defendants argue that Van Patten gave “prior
express consent” to being contacted at his cellular telephone
number by providing that number in connection with his
application for a gym membership.
We do not question, in this appeal from an order of the
district court, the validity of the FCC’s interpretation of
“prior express consent.” See Mais v. Gulf Coast Collection
Bureau, Inc., 768 F.3d 1110, 1119–21 (11th Cir. 2014); US
W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n.2 (9th
Cir. 2002). We read the 1992 Order in a way that harmonizes
with the TCPA’s text and purpose, as well as the FCC’s other
orders and rulings. 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.
The TCPA was created in response to the ever increasing
consumer complaints regarding telemarketing calls. “The
purpose and history of the TCPA indicate that Congress was
trying to prohibit the use of [automatic dialing] to
communicate with others by telephone in a manner that
would be an invasion of privacy.” Satterfield, 569 F.3d at
954. 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
14 VAN PATTEN V. VERTICAL FITNESS GROUP
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.
To aid the FCC’s interpretation of “prior express consent”
in its 1992 Order, the FCC cited a House of Representatives
report on the TCPA, which stated that when people provide
their telephone numbers, “the called party has in essence
requested the contact by providing the caller with their
telephone number for use in normal business
communications.” 7 F.C.C. Rcd. at 8769 n.57 (quoting H.R.
Rep. No. 102–317 at 13) (emphasis added). This supports
that a consumer consents to contact for transaction-related
communications when the consumer provides his or her
phone number to the caller; it does not support the view,
argued by Defendants, that the consumer consents to any and
all contact.
The FCC’s 2008 Order interpreting prior express consent
also indicates a more narrow view than assuming that giving
a phone number alone amounts to consent to receive calls or
texts at that number irrespective of purpose. In its 2008
Order, the FCC was asked by a trade association to rule on
whether a creditor has permission to call a debtor. See 2008
Order, 23 F.C.C. Rcd. at 563. The FCC “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.” Id. at 564 (second emphasis
added). The FCC cited to the legislative history of the TCPA
and the House Report’s exception for “normal business
communications.” Id. The 2008 Order went on to state that
giving a contact phone number is not prior express consent
for any contact, instead “prior express consent is deemed to
VAN PATTEN V. VERTICAL FITNESS GROUP 15
be granted only if the wireless number was provided by the
consumer to the creditor, and that such number was provided
during the transaction resulted in the debt owed.” Id. at
564–65.
FCC orders that took effect after the text messages at
issue in this case further explain the FCC’s interpretation of
“prior express consent.” 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). Because the alleged conduct
here took place before the rule took effect on October 16,
2013, Defendants need not have obtained prior express
written consent from Van Patten. In the 2012 Order, the FCC
addressed a comment that argued against requiring prior
express written consent. The commenter had urged that
“customers may orally provide their wireless phone number
as a point of contact and therefore those customers expect
marketing and service calls.” In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of
1991, 27 F.C.C. Rcd. 1830, 1840 (Feb. 15, 2012) (the “2012
Order”) (emphasis in original). The FCC disagreed with this
broad interpretation of consent: “Consumers who provide a
wireless phone number for a limited purpose – for service
calls only – do not necessarily expect to receive telemarketing
calls that go beyond the limited purpose for which oral
consent regarding service calls may have been granted.” Id.
A 2014 FCC ruling on the scope of a consumer’s consent
also informs our understanding of the FCC’s interpretation of
prior express consent. The ruling addressed whether a
consumer’s consent in joining a text-based social group
constitutes prior express consent to receive administrative
16 VAN PATTEN V. VERTICAL FITNESS GROUP
texts confirming the consumer’s interest in joining the group.
See In re GroupMe, Inc./Skype Communications S.A.R.L.
Petition for Expedited Declaratory Ruling, 29 F.C.C. Rcd.
3442, 3443 (Mar. 27, 2014). Reasoning that “Congress did
not expect the TCPA to be a barrier to normal, expected, and
desired business communications,” id. at 3444, the FCC
considered the GroupMe administrative texts “to be normal
business communications,” id. at 3445. The FCC held that
[t]o the extent that a consumer, in the absence
of instructions to the contrary, agrees to
participate in a GroupMe group, agrees to
receive associated calls and texts, and
provides his or her wireless telephone number
to the group organizer for that purpose, we
interpret that as encompassing consent for
GroupMe to send certain administrative texts
that relate to the operation of that GroupMe
group.
Id. at 3446. The FCC reasoned that the consumer gave
permission to be contacted at that number in connection with
that particular GroupMe texting group. Id.
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
VAN PATTEN V. VERTICAL FITNESS GROUP 17
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.
The parties also dispute whether Van Patten gave prior
express consent to be contacted by Vertical Fitness.
Defendants contend that Van Patten gave Vertical Fitness
prior express consent because the particular gym he joined
did not change ownership, Vertical Fitness remained the
operator, and only the brand identity changed from Gold’s
Gym to Xperience Fitness. From when Van Patten initially
joined the gym to when the text messages were sent,
ownership and operation of the gym did not change. That the
brand affiliation changed does not affect that the gym was
owned and operated by the same entities.
3. Revocation of Prior Express Consent
Van Patten further argues that even if he gave prior
express consent, by submitting his phone number in the gym
membership application, he revoked his consent when he
cancelled the gym membership. The parties do not seriously
dispute that consumers can revoke their consent, but they
disagree as to whether Van Patten revoked his consent. We
hold that although consumers may revoke their prior express
18 VAN PATTEN V. VERTICAL FITNESS GROUP
consent, Van Patten’s gym cancellation was not effective in
doing so here.
We first address whether consent is revocable under the
TCPA. The TCPA does not explicitly grant consumers the
right to revoke their prior express consent. See 47 U.S.C.
§ 227; see also 2012 Order, 27 F.C.C. Rcd. at 15394 ¶ 8
(noting that neither text nor legislative history of the TCPA
directly addresses circumstances where prior express consent
is deemed revoked). At least two of our sister circuits and
several lower courts have concluded that consumers may
revoke their prior express consent without temporal
limitations. See Osorio v. State Farm Bank, F.S.B., 746 F.3d
1242, 1255–56 (11th Cir. 2014); Gager v. Dell Fin. Servs.,
LLC, 727 F.3d 265, 272–73 (3d Cir. 2013); Munro v. King
Broad. Co., No. C13-1308JLR, 2013 WL 6185233, at *3
(W.D. Wash. Nov. 26, 2013) (collecting cases).
Courts have given three main reasons for concluding that
consumers may revoke their consent under the TCPA. First,
such a holding is consistent with the common law principle
that consent is revocable. See Gager, 727 F.3d at 270.
Courts have found that Congress did not depart from the
common law understanding of consent, and at common law,
consent may be withdrawn. Id. (citing Neder v. United
States, 527 U.S. 1, 21 (1999) (“[W]here Congress uses terms
that have accumulated settled meaning under . . . the common
law, a court must infer, unless the statute otherwise dictates,
that Congress means to incorporate the established meaning
of these terms.”)).
Second, allowing consumers to revoke their prior consent
aligns with the purpose of the TCPA. Id. at 271; Osorio,
746 F.3d at 1255. Because the TCPA is a remedial statute
VAN PATTEN V. VERTICAL FITNESS GROUP 19
intended to protect consumers from unwanted automated
telephone calls and messages, it should be construed in
accordance with that purpose. See Gager, 727 F.3d at 271.
Allowing consent to be revoked is consistent with that
purpose.
Third, the FCC has stated persuasive guidance implying
that consumers may revoke their consent. In a declaratory
ruling in SoundBite Communications, Inc., 27 F.C.C. Rcd.
15391, the FCC stated that “requests to stop receiving voice
calls . . . can be confirmed during the same call in which a
consumer has expressed a desire to opt out . . . .” 2012 Order,
27 F.C.C. Rcd. at 15398 ¶ 13. The FCC stated that a
consumer may revoke his or her prior express consent by
sending an opt-out request to the sending party. Id. at 15397
¶ 11 n.47; id. at 15398 ¶ 13. For example, a consumer may
request “that no further text messages be sent.” Id. at 15394
¶ 7. While the thrust of the SoundBite ruling explained why
it is permissible to send a confirmatory opt-out message, the
decision indicates that the FCC endorses the ability of
consumers to revoke their prior express consent. See Gager,
727 F.3d at 271–72.
The FCC also has since clarified that consumers may
revoke consent in its July 2015 Declaratory Ruling and Order.
See In re Rules & Regulations Implementing the Telephone
Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961 (July
10, 2015) (the “2015 Order”). The 2015 Order stressed that
consumers “have a right to revoke consent, using any
reasonable method including orally or in writing.” Id. at 7996
¶ 64. The FCC also specified ways that a consumer may
revoke a call: “by way of a consumer-initiated call, directly
in response to a call initiated or made by a caller, or at an in-
store bill payment location, among other possibilities.” Id.
20 VAN PATTEN V. VERTICAL FITNESS GROUP
The FCC emphasized that the TCPA does not permit the
calling party to designate the exclusive means of revocation,
and instead, the called party must “clearly express his or her
desire not to receive further calls.” Id. at 7997 ¶ 67. It is
reasonable for the FCC to interpret the TCPA to permit
revocation of consent. See Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984).
Concluding that the reasoning of our sister circuits is
persuasive and the FCC’s interpretation of the TCPA is
reasonable, we agree that the TCPA permits consumers to
revoke their prior express consent to be contacted by
telephone autodialing systems.
We next address whether in fact Van Patten revoked his
consent. Van Patten argues that cancelling his gym
membership sufficiently communicated his desire to no
longer be contacted. But we conclude that because Van
Patten did not clearly express his desire not to receive further
text messages, he did not revoke his consent.
Revocation of consent must be clearly made and express
a desire not to be called or texted. That was not done here.
No evidence in the record suggests that Van Patten told
Defendants to cease contacting him on his cell phone. Some
ways Van Patten could have communicated his revocation
include, but are not limited to, plainly telling Defendants not
to contact him on his cell phone when he called to cancel his
gym membership or messaging “STOP” after receiving the
first text message.
Because Van Patten did not revoke his consent to be
contacted, we affirm the district court’s grant of summary
judgment for Defendants on their affirmative defense that
VAN PATTEN V. VERTICAL FITNESS GROUP 21
Van Patten consented to receive the text messages at issue
here.
B. California Business and Professions Code
§ 17538.41 and § 17200
Van Patten also contends that the district court erred by
granting summary judgment to Defendants on his California
Business and Professions Code claims. We disagree and
affirm the district court’s grant of summary judgment on his
state-based claims.
Van Patten alleges that Defendants violated California
Business and Professions Code § 17538.41, which provides
that “no . . . entity conducting business . . . in this state shall
transmit, or cause to be transmitted, a text message
advertisement to a mobile telephony services handset, pager,
or two-way messaging device that is equipped with short
message capability or any similar capability allowing the
transmission of text messages.” Van Patten additionally
alleges Defendants violated California Business and
Professions Code § 17200, which provides remedies for “any
unlawful, unfair or fraudulent business act or practice.”
Under California law, Van Patten does not have standing
to bring either of these statutory claims. Proposition 64,
passed by California citizens in 2004, sets a more limited
standing requirement on plaintiffs seeking relief under
California’s Unfair Competition Law and/or False
Advertising Law. Plaintiffs must “(1) establish a loss or
deprivation of money or property sufficient to qualify as
injury in fact, i.e., economic injury, and (2) show that that
economic injury was the result of, i.e., caused by, the unfair
business practice or false advertising that is the gravamen of
22 VAN PATTEN V. VERTICAL FITNESS GROUP
the claim.” Kwikset Corp. v. Superior Court, 246 P.3d 877,
885 (Cal. 2011) (emphasis in original). This economic injury
requirement is “more restrictive than federal injury in fact”
because it encompasses fewer kinds of injuries. Id. at 886.
It was not, however, “intended to be quantitatively more
difficult to satisfy” than the threshold for economic injuries
that satisfy Article III standing. Id. That is, “the quantum of
lost money or property necessary to show standing” under
Proposition 64 is only so much as would satisfy federal
standing. Id. This economic injury requirement was made
with identical language to both relevant remedial sections of
Van Patten’s California claims. See Cal. Bus. & Prof. Code
§ 17535 (“Actions for injunction under this section may be
prosecuted by . . . any person who has suffered injury in fact
and has lost money or property as a result of a violation of
this chapter.”); Cal. Bus. & Prof. Code § 17204 (“Actions for
relief pursuant to this chapter shall be prosecuted . . . by a
person who has suffered injury in fact and has lost money or
property as a result of the unfair competition.”); see also
Kwikset, 246 P.3d at 883–85.
Van Patten cannot prove that the text messages caused
him to suffer an economic injury “which is (a) concrete and
particularized . . . and (b) actual or imminent, not conjectural
or hypothetical.” Kwikset, 246 P.3d at 886. Although Van
Patten argues that he was charged for the text messages sent
by Defendants, the record shows that he paid for an unlimited
text messaging plan. Under this unlimited plan, regardless of
how many text messages Van Patten received during a month,
he still paid the same monthly fee. Van Patten contends that
he was still charged for the texts because every text message
he receives under his unlimited text messaging service
ultimately affects his cellular telephone provider’s bundled
pricing. His argument is that cellular companies raise the
VAN PATTEN V. VERTICAL FITNESS GROUP 23
prices of their bundled plans when text message traffic
increases to the point that cellular operators’ profit margins
decrease too much. But this argument is hypothetical and
conjectural, and Van Patten has not demonstrated that any
price increase was caused by Defendants’ conduct. Van
Patten has not shown and cannot demonstrate any economic
injury.
Van Patten lacks standing to bring his claim under
California Business and Professions Code §17538.41 and
§ 17200. See id. at 883–87. We affirm the district court’s
grant of summary judgment in favor of Defendants on these
claims.
III
We affirm the district court’s grant of summary judgment
in favor of Defendants on all claims presented.
AFFIRMED.