A Telephone Consumer Protection Act defendant scored a victory when the U.S. Court of Appeals for the Ninth Circuit ruled that by providing his phone number to his former gym, the plaintiff granted consent to be contacted in the future, even by a different named company.
Bradley Van Patten joined a Gold’s Gym in Green Bay, Wisconsin in March 2009. As part of his application, he provided contact information including his cell phone number. Just a few days later, however, he called and canceled his membership. In 2012, Vertical Fitness (which owned the Gold’s Gym Van Patten had joined) launched an advertising campaign to recruit prior members.
Vertical provided the phone numbers of former or inactive gym members to a marketing company to send text messages as part of the campaign. Van Patten received this message in March 2012: “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.”
Van Patten sued. He alleged that he never provided his consent to receive text messages from the gym and that, even if he had, he revoked that consent when he canceled his membership. A U.S. District Court judge disagreed, granting summary judgment in favor of Vertical, and the Ninth Circuit affirmed.
After establishing that Van Patten had standing under Spokeo, Inc. v. Robins, the panel considered the context in which the plaintiff provided his cell phone number.
Although the Federal Communications Commission has stated that “persons 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,” this does not mean that a consumer has expressly consented to contact for any purpose whatsoever, the court said. “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 scope of consent depends on “the transactional context in which it is given,” the court added, and the call or text message “must be based on the circumstance in which the consumer gave his or her number.”
In the plaintiff’s case, he gave prior express consent to receive certain types of text messages from the gym, the court said. “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 court wrote. “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.”
Did Van Patten revoke his consent when he canceled his gym membership? No, the Ninth Circuit determined. While consumers may revoke their prior express consent, the plaintiff failed to do so effectively.
“Revocation of consent must be clearly made and express a desire not to be called or texted,” the panel wrote. “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 message.”
As Van Patten did not revoke his consent, the panel affirmed summary judgment in favor of the gym.
To read the opinion in Van Patten v. Vertical Fitness Group, LLC, click here.
Why it matters: The Ninth Circuit’s decision in Van Patten provides several important lessons for advertisers. First, the panel made quick work of the defendant’s standing argument under Spokeo, having little trouble finding that “the telemarketing messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA.” But, that plaintiff-friendly holding was tempered somewhat by the court’s recognition that when a consumer provides a phone number, he or she agrees to receive messages within a certain scope of issues. Finally, the panel established that revocation of consent “must be clearly made and express a desire not to be called or texted”—a standard the plaintiff failed to meet by merely cancelling his membership.