The appellate court held that a consumer failed to reasonably revoke her consent as required under the TCPA.
10/29/2018 6:00
The Ninth Circuit Court of Appeals issued an unanimous opinion on Friday in favor of industry in the case of Epps v. Earth Fare, Inc. No. 17-55413, 2018 WL ——- (9th Cir., Oct. 26, 2018). The issue in Epps was whether the district court erred when it found as a matter of law that the consumer’s alleged revocation of consent to receive text messages was ineffective under the Telephone Consumer Protection Act because her method of revoking consent was not reasonable.
Affirming the district court’s decision, the Ninth Circuit ruled that the consumer’s attempt to revoke consent was unreasonable because she failed to use, without explanation, the business’ one-word opt-out procedure it made available to her even after the business provided notice to the consumer that “it did not understand her non-standard messages.”
As ACA reported previously, despite the business, an organic grocer, prompting the consumer to text “STOP” if she wished to revoke her consent, the consumer in Epps responded instead with long sentences such as “I would appreciate [it] if we discontinue any further texts” or “Thank you but I would like the text messages to stop can we make this happen.” Noting that this was one of several similar suits filed by the same consumer, the business moved to dismiss the consumer’s TCPA suit against it, arguing that her responses had been deliberately designed to frustrate its automated system for recognizing revocations of consent. The district court agreed and dismissed the case with prejudice. In doing so, the district court wrote.
The totality of the plausibly alleged facts, even when viewed in Plaintiff’s favor, militate against finding that Plaintiff’s revocation method was reasonable. Without explanation, Plaintiff ignored Defendant’s clear instruction to stop the messages. Furthermore, although Plaintiff is correct that Defendant “may not abridge [Plaintiff’s] right to revoke consent using any reasonable method,” and “may not deliberately design systems or operations in ways that make it difficult or impossible to effectuate revocations,” Plaintiff has not plausibly alleged any such burden here. In fact, heeding Defendant’s opt-out instruction would not have plausibly been more burdensome on Plaintiff than sending verbose requests to terminate the messages. In sum, Plaintiff has not plausibly alleged that her revocation was effective.
Over three years ago — in a deeply divided decision that prompted two blistering dissents and a nearly immediate appeal from ACA to the U.S. Court of Appeals for the D.C. Circuit on a host of issues — the Federal Communications Commission issued its 2015 TCPA Declaratory Ruling and Order, finding that consent to be called can be revoked through “any reasonable method” that, based on “the totality of the facts and circumstances,” expresses “a desire not be receive further messages.”
In his dissent, current Chairman Ajit Pai predicted that the then-majority’s ruling would make TCPA compliance impossible and TCPA abuse inevitable. (“[H]ow could any retail business possibly comply with the provision that consumers can revoke consent orally ‘at an in-store bill payment location’? Would they have to record and review every single conversation between customers and employees?”); (“Some lawyers go to ridiculous lengths to generate new TCPA business. . . . This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.”). Therefore, in its lawsuit against the FCC, ACA challenged, among other things, the revocation of consent ruling as arbitrary and capricious (because compliance would be impossible) and inconsistent with the common law of contracts (because parties may voluntarily waive their rights, which would include a “right” to revoke consent to be called).
Although the D.C. Circuit Court of Appeals sided, in part, with the FCC in ACA Int’l v. FCC by upholding the portion of the 2015 TCPA Order that allows called parties to revoke consent at any time and through any reasonable means, other courts in the judicial system can still provide alternative avenues to rein in TCPA abuse. Therefore, given the staggering number of TCPA filings that have continued to dramatically increase in the years following the FCC’s ruling, ACA filed an amicus brief with the Ninth Circuit in the Epps appeal on December 28, 2017. ACA submitted the “friend of the court” brief to combat the TCPA trend of “revocation of consent” claims based on “unreasonable revocation methods” manufactured by entrepreneurial plaintiffs while, at the same time, helping to define, at least in the Ninth Circuit, what it means to effectively revoke consent using a reasonable method under the TCPA. In doing so, ACA urged the appellate court to affirm the district court’s decision to dismiss the case because the consumer’s chosen method of revocation was entirely unreasonable and, therefore, ineffective. And without an effective revocation, the consumer’s consent to receive the business’ messages also deprived her of standing to sue. ACA argued that such a ruling from the Ninth Circuit would help “legitimate, compliant, law-abiding actors who are trying to run their businesses without being played by plaintiffs who would abuse the law and the courts for selfish gain, and manufacture the very ‘violations’ of which they complain.”
ACA is pleased it was able to help stop the consumer’s effort to create unfavorable precedent for the accounts receivable management industry by evading known opt-out mechanisms to manufacture TCPA claims and trigger related liability. And ACA is delighted that the Epps opinion raises the industry-favorable decisions (wins) ACA has helped to achieve for its members through the Industry Advancement Fund to a total of 41 in five years.
ACA International’s efforts to proactively support the accounts receivable management industry are part of the association’s Industry Advancement Fund, and are made possible by funding through ACA’s Industry Advancement Fund.
If you missed any of the articles previously published in ACA Daily that provided more detailed information about Industry Advancement Fund supported cases, you can always see the archived articles on the Industry Advancement Fund website. Watch for updates when decisions are issued in these cases and learn more about new cases supported by the Industry Advancement Fund in the future by reading ACA Daily and logging onto the Industry Advancement Fund website throughout the year. The association's TCPA Resource Center, also features related news, ACA SearchPoint documents, legal and regulatory materials, compliance guidelines and more.