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When Do You Give Consent and When Do You Revoke It?

02/09/2017 at 05:28:23 PM

What does it mean to revoke consent? Unfortunately, the FCC has left that open to interpretation. The FCC declared that revocation of consent can be made by any “reasonable means” as long as a consumer makes it clear that they do not want to receives any further calls from a particular business. 

The problem is that the FCC has not clearly defined what constitutes “reasonable means” which means that a court can interpret the definition of reasonable, as was the case with Van Patten v. Vertical Fitness Group LLC.

To rebrand Xperience Fitness Club, Vertical Fitness Group LLC wanted to inform all current, and former members of its new brand and sent unsolicited text messages.

Van Patten, the plaintiff, argued he did not give permission to Xperience Fitness to send text messages to the mobile phone number he provided on his gym membership when it functioned as a Gold’s Gym before he canceled his membership and the gym was rebranded.

Van Patten also argued that he revoked his consent to be contacted by Xperience Fitness by canceling his gym membership.

The facts of the case are as follows:
On March 21, 2009, Van Patten visited a Gold’s Gym franchise in Green Bay, Wisconsin inquiring about a gym membership. 
During his initial visit, Van Patten filled out an information card which included his demographic, financial, and contact information.
Van Patten listed his cell phone number as his contact phone number.
The plaintiff argues that he revoked his consent to be contacted by Xperience Fitness when he canceled his gym membership.
The defendants argue Van Patten gave his consent to being contacted after he gave his cell phone number while signing up to receive a gym membership.

The court ruled that for purposes of his law suit filed under the Telephone Consumer Protection Act of 1991 (TCPA), Van Patten gave prior express consent to receive the text messages at the time he signed the agreement to become a Gym member and did not effectively revoke his consent, which negated his TCPA claim.

It’s also important to note:
That under the FCC’s TCPA Act of 1991, prior express consent was required to send solicitation text messages. 
This text message solicitation had occurred before the FCC required prior express WRITTEN consent.  
A consumer may revoke his or her consent but must clearly express that he or she does not want to receive any messages or calls.  Canceling his gym membership did not constitute revocation of consent.
This case is limited to the 9th Circuit and does not necessarily create a precedent for all TCPA cases; however, it does create precedence in the 9th Circuit. In short, consent may not be implicitly revoked but must be clearly stated.

You can read the full court ruling here.

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