In the 2017 case ACA v. FCC, the D.C. Circuit Court confirmed prior Federal Communications Commission (FCC) guidance that Telephone Consumer Protection Act (TCPA) consent to be called can be revoked by “any reasonable means.” Since that ruling, trial courts have provided guidance on what constitutes “reasonable.” Last month, the U.S. District Court for the Eastern District of California weighed in on the topic.
In Wright v. USAA Sav. Bank., Plaintiff’s attorney sent a letter revoking consent by certified mail to USAA SB’s headquarters in Las Vegas, Nevada; however, Plaintiff continued to receive calls. In determining that Plaintiff did not use “reasonable means” for revocation, the court focused on the fact that USAA FSB (the account servicer for USAA SB) had never listed USAA SB’s Las Vegas headquarters as an address for account correspondence, nor was it on the website of USAA FSB. Each of the 200 statements provided by USAA FSB, sent over 18 years to Plaintiff, listed the return address as a San Antonio, Texas address. The Las Vegas address was only staffed by six people and did not confirm receipt of the revocation letter, which was left at the location’s front desk and which was not controlled by USAA SB.
The Wright Court acknowledged the FCC “reasonable means” standard and looked into the “totality of the facts and circumstances.” It further assessed the reasonableness of Plaintiff’s revocation of consent, including the reasonable expectation of Plaintiff to effectively communicate her revocation under her circumstances. The Court granted summary judgment for USAA SB concluding that “no reasonable trier of fact could find that plaintiff used reasonable means to revoke consent.” The Court recognized that USAA FSB had never provided Plaintiff with the Las Vegas address for any account correspondence, and Plaintiff failed to establish USAA SB recorded receiving the letter.
Most interesting in the Court’s order is that it believed Plaintiff’s counsel sent the letter to the Las Vegas address as a legal strategy aimed to make a record for litigation and not in expectation that USAA SB would receive the letter. Counsel for Plaintiff has filed over 90 TCPA cases, including a prior suit against USAA SB. In that prior suit, Plaintiff’s counsel was put on notice of issues with the chosen method of revocation provided to USAA SB.
The Wright decision is in line with previous court interpretations regarding the “reasonable means” standard of revocation of consent to receive text messages under the TCPA. In Rando v. Edible Arrangement Int., LLC, the U.S. District Court for the District of New Jersey found the Plaintiff failed to reasonably revoke consent to Defendant’s text messages when she sent more than 10 text messages to the Defendant texter, but none of which followed the simple instructions the texter provided to reply “STOP.” In Van Patten v. Vertical Fitness Group, the U.S. Court of Appeals for the Ninth Circuit found the plaintiff failed to reasonably revoke consent to text messages from the Defendant by merely canceling his gym membership when the Plaintiff could have easily revoked consent by replying to the Defendant’s text with “STOP.”
Wright highlights the importance of the TCPA’s “reasonable means” requirement under the totality of the circumstances needed to revoke consent. While a caller or texter cannot limit the manner in which consumer revocation of consent occurs, courts appear to give leeway to the caller or texter that provides the consumer with clear and non-burdensome instructions to revoke consent. Further, courts seem unwilling to be baited into allowing consumers to revoke consent by a manner strategically used to set up future litigation.
* Aaron Parry contributed to this post.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.