The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.

Mendoza alleged that Allied, a debt collection company, had violated the TCPA in connection with collection calls regarding his JC Penney-branded and Synchrony-issued credit card accounts. When Mendoza opened the accounts, he provided his cell phone number and consented to receiving communications, including both text messages and calls from automatic telephonic dialing systems and/or artificial or prerecorded voices. After Mendoza became delinquent on the accounts, Allied made 351 collection calls to the phone number Mendoza provided on his credit card applications. Mendoza claimed that he had twice revoked consent to be called during calls with the card issuer, Synchrony.

The primary dispute was whether the scope of Mendoza’s revocations extended to his JC Penney accounts and to Allied. Recordings of the calls in which he revoked consent demonstrated that Synchrony had called Mendoza about two other accounts, with PayPal and Walmart. Mendoza had not specified that his revocation would extend to any other accounts. Mendoza also admitted in discovery that he never spoke with any debt collector specifically about his JC Penney accounts, and presented no other facts to support his assertion that he revoked consent regarding the JC Penney accounts. Indeed, Allied argued that it was never aware of any revocation.

The Court found that Mendoza had not offered evidence sufficient to support his allegation that he revoked consent as to his JC Penney accounts. In so holding, the Court distinguished Jara v. GC Services Limited Partnership, 2018 WL 2276635, at *3–4 (C.D. Cal. May 17, 2018), another case involving multiple accounts. In Jara, the TCPA claim survived summary judgment, because the plaintiff had several times revoked her consent as to “all my accounts” and “all my debts.” In contrast, the Mendoza court explained, Mendoza did not reference having additional accounts. The Ninth Circuit has held that “the scope of a consumer’s consent depends on the transactional context in which it is given.” Mendoza, 2019 WL 5616961, at *5 (quoting Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017)). The Mendoza case highlights that the scope of revocation is similarly determined by context—and, by extension, that it can create a predominating individualized issue in some cases.

Currently, senders of lawful informational text messages must rely on context to meet customers’ intent and determine the scope of a customer’s opt-out request. A petition recently filed in the FCC seeks a declaratory ruling confirming that a business is permitted to send an opt-out confirmation message to clarify the scope of a customer’s opt-out.