Cancelling a Contract Doesn't Negate Prior Consent to Receive Text Messages

The Ninth Circuit ruled that a customer who gave his phone number to a gym cannot sue the company for contacting him by text message -- even after the customer cancelled his membership.

According to the ruling, it was a matter of context and a failure to expressly revoke consent. The man cancelled his membership, but he did not expressly revoke his consent to receive messages.

"The call or text message must be based on the circumstance in which the consumer gave his or her number," the appellate court said in an unanimous opinion. "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."

One, Not Two Class Action

In the end, the case was also about the claimed injury. The company sent only two text messages, offering to renew the man's membership. The first one, which was repeated in the second one, said:

"Golds 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."

In deciding the plaintiff had standing, the appeals court said Bradley Van Patten had suffered injury-in-fact based on the alleged statutory violation. The plaintiff claimed that the gym and its marketing company violated the Telephone Consumer Protection Act of 1991, which prohibits unsolicited advertising and automated messages sent to cell phones.

On the other hand, however, the court said the plaintiff did not have standing to sue under California's unfair business practices and false advertising laws because he did not suffer an economic injury as required under the statutes.

Consent: Yes or No?

The case turned ultimately on questions about consent. The court considered the legislative history of the Telephone Consumer Protection Act and rulings by the Federal Communications Commission, and concluded that the plaintiff gave his "prior express consent" to be contacted for matters within the scope of his membership.

By cancelling his membership only, the court reasoned, Van Patten did not expressly revoke his consent to receive text messages about his membership. He could have called or texted back "stop" after receiving the first message.

"Revocation of consent must be clearly made and express a desire not to be called or texted," Judge Ronald M. Gould wrote for the panel. "That was not done here. "

Related Resources:

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• Indian Tribes Subject to Lending Laws (FindLaw's U.S. Ninth Circuit Blog)