District Court Reinforces Requirement that Revocation of Consent Must be Reasonable
The District of New Jersey recently dismissed a class action TCPA complaint, finding that the plaintiff did not use a reasonable method of revoking consent when she failed to follow the defendant’s straightforward directions for providing such revocation. Rando v. Edible Arrangements Int’l, LLC, No. 17-0701, 2018 U.S. Dist. LEXIS 51201 (D.N.J. Mar. 28, 2018). In doing so, the court’s decision further confirmed the position within the District that the totality of the circumstances dictates whether a method of revocation of consent is reasonable and thus valid in TCPA cases.
In Rando, plaintiff alleged that defendant violated the TCPA by using an ATDS to send her commercial text messages after she withdrew her consent and “designating an exclusive means by which consumers could revoke consent.” Id. at *8-9. Defendant moved to dismiss, arguing, among other things, that plaintiff did “not plausibly allege that she revoked her consent to receive automated text messages.” Id. at *5. In replying to the text messages, plaintiff had “sent ten separate messages containing natural language stating her desire to stop receiving text messages instead” of simply replying “using the single word ‘STOP,’” as each of the messages directed. Id. at *3. Plaintiff argued in opposition that her method of revocation, which included sending replies such as “[t]ake my contact info off please” and “[a]gain I want to stop this service thank you,” was reasonable and that defendant could not “designate an exclusive means of revocation.” Id. at *2, *8.
The court framed the consequent issue as “the legal effect of replying to an unwanted commercial text message using language that would, if read by a human being, clearly indicate a desire to revoke consent to receive text messages, but not using the required (and clearly-stated to the consumer) language that the computerized texting service would recognize as effecting such a revocation.” Id. at *8. In deciding this issue, the court recognized the tension in the FCC’s guidance, which, on the one hand, directs courts to review the totality of the circumstances, but on the other, provides “that a caller may not ‘infringe on [a consumer’s ability’ to ‘revoke consent in any manner that clearly expresses a desire not to receive further messages’ ‘by designating an exclusive means to revoke.’” Id. at *13 (quoting In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling & Order, 30 FCC Rcd. 7961, 7996 ¶ 63 (July 10, 2015)). To resolve this tension, the court turned to another District of New Jersey case, Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243, 2017 WL 5668000 (D.N.J. Nov. 27, 2017), which we previously reported on here. There, the court held that “[t]he FCC’s ruling[s] are clear—a caller may not designate a method of opting out ‘in ways that make it difficult or impossible to effectuate revocations.’” Rando, 2018 U.S. Dist. LEXIS 51201 at *14 (quoting Viggiano, 2017 WL 5668000, at *4). The Rando court similarly ruled that “[t]he relevant provision of the TCPA is violated not when a caller has certain internal policies, but when it calls a cell phone, e.g. without a consumer’s prior express consent. The FCC’s regulations . . . state that . . . revocation occurs when the method of revocation is reasonable, under the totality of the circumstances.” Id. at *14-15. Accordingly, the court held that a plaintiff cannot state a TCPA claim by alleging only “that a caller designated an exclusive means of revoking consent; Plaintiff must also allege that the designated exclusive means for revoking consent made it difficult or impossible to effectuate her actually-attempted revocation, and that her chosen method of revocation was reasonable.” Id. at *15.
Here, the court found that plaintiff’s method of revocation was not reasonable. The court reasoned that “[w]hen presented with the direction ‘Reply HELP for help. STOP to cancel,’ Plaintiff instead” gave a plain language response, and when she “continued to receive text messages ending with the” same directive, she “continued to respond in the same unproductive manner.” Id. at *18-19. The court held that, “in the totality of the circumstances, a reasonable person seeking to revoke consent would have tried, at least at some point during the back-and-forth, simply replying ‘STOP’ to cancel—as instructed, rather than ignoring Defendant’s revocation method and sending ten long text messages to that effect, most of which did not include the word ‘stop’ at all. There can be no question on these factual allegations but that Plaintiff did not comply, nor even attempt to comply, with the apparently simple directions repeatedly given to her.” Id. at *19-20. As a result, the court found that plaintiff’s complaint did not state a claim under the TCPA because she did not plausibly allege “that she used a reasonable means of revoking her consent.” Id. at *20.
While the D.C. Circuit’s decision in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), upheld the portion of the FCC’s 2015 Order that provided that revocation of consent can be made through any reasonable means, decisions such as Rando illustrate that reasonableness can still be a significant hurdle in stating a claim under the TCPA.