Van Patten v. Vertical Fitness Group, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRADLEY VAN PATTEN, an

individual, on behalf of himself and

all others similarly situated,

Plaintiff-Appellant,

VERTICAL FITNESS GROUP, LLC, a

limited liability company; ADVECOR,

INC., a California corporation,

Defendants-Appellees.

No. 14-55980

D.C. No.

3:12-cv-01614-

LAB-MDD

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted May 4, 2016

Pasadena, California

Filed January 30, 2017

Before: William A. Fletcher and Ronald M. Gould, Circuit

Judges, and Ivan L.R. Lemelle,

District Judge.

Opinion by Judge Gould

The Honorable Ivan L.R. Lemelle, United States District Judge for

the Eastern District of Louisiana, sitting by designation.

VAN PATTEN V. VERTICAL FITNESS GROUP2

SUMMARY

Telephone Consumer Protection Act

The panel affirmed the district court’s grant of summary

judgment in favor of the defendants in an action under the

Telephone Consumer Protection Act regarding text messages

about a gym membership.

The panel held that under Spokeo, Inc. v. Robins, 136

S. Ct. 1540 (2016), the plaintiff alleged a concrete injury

sufficient to confer Article III standing to pursue his TCPA

claim.

The panel held that, for purposes of the TCPA, the scope

of a consumer’s consent to being contacted depends on the

transactional context in which it is given. Citing FCC orders,

the panel held that an effective consent is one that relates to

the same subject matter as is covered by the challenged calls

or text messages. Agreeing with other circuits, the panel held

that a 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. The panel concluded that, in this case,

the plaintiff gave prior express consent to receive the text

messages at issue and did not effectively revoke his consent.

Affirming the district court’s summary judgment on

claims asserting violations of California Business and

Professional Code §§ 17583.41 and 17200, the panel held that

the plaintiff did not establish economic standing.

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VAN PATTEN V. VERTICAL FITNESS GROUP 3

COUNSEL

George Rikos (argued), Law Offices of George Rikos, San

Diego, California; Craig M. Nicholas and Alex M.

Tomasevic, Nicholas & Tomasevic LLP, San Diego,

California; for Plaintiff-Appellant.

Alexander Papaefthimiou (argued), Law Office of Alexander

E. Papaefthimiou, Camarillo, California; Gregory M.

Harrison, Gregory M. Harrison APC, San Diego, California;

for Defendant-Appellee Advecor, Inc.

Mark E. Ellis (argued), Ellis Law Group LLP, Sacramento,

California, for Defendant-Appellee Vertical Fitness Group

LLC.

Brian Melendez, Dykema Gossett PLLC, Minneapolis,

Minnesota, for Amicus Curiae ACA International.

OPINION

GOULD, Circuit Judge:

This is a consumer protection case arising from text

messages about a gym membership. The parties dispute the

scope of the consumer’s consent to being contacted after he

gave his cell phone number while signing up for a gym

membership, and whether he revoked his consent when he

cancelled the membership. For purposes of the Telephone

Consumer Protection Act of 1991 (TCPA), we hold that the

scope of a consumer’s consent depends on the transactional

context in which it is given. The call or text message must be

based on the circumstance in which the consumer gave his or

VAN PATTEN V. VERTICAL FITNESS GROUP4

her number. 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.

For the reasons that follow, we conclude that Plaintiff-

Appellant Bradley Van Patten gave prior express consent to

receive the text messages at issue, and did not effectively

revoke his consent, hence dooming his TCPA claim. Also, as

for his claims under California law asserting violations of

California Business and Professions Code §§ 17583.41 and

17200, Van Patten did not establish economic standing. We

affirm the district court’s grant of summary judgment in favor

of Defendant-Appellees Vertical Fitness Group, LLC and

Advecor, Inc.

On March 21, 2009, Plaintiff-Appellant Bradley Van

Patten visited a Gold’s Gym franchise in Green Bay,

Wisconsin to obtain information about a gym membership.

During the visit, Van Patten submitted a desk courtesy card

to the gym, wherein he wrote his demographic, financial, and

contact information to determine whether he was pre-

qualified to become a member. In this data Van Patten listed

his cell phone number as his contact number.

Van Patten then met with the gym’s manager, an

employee of Defendant-Appellee Vertical Fitness Group,

LLC, to discuss the possibility of a membership. During this

conversation, the manager filled out a Gold’s Gym

Membership Agreement on behalf of Van Patten, which Van

Patten signed. The manager wrote Van Patten’s cell phone

number in the phone number field. Within three days of

opening his gym membership, Van Patten called Gold’s Gym

VAN PATTEN V. VERTICAL FITNESS GROUP 5

to cancel his membership. Van Patten moved to California in

the summer of 2009, but he kept his Wisconsin cell phone

number.

Vertical Fitness owned or managed several of the Gold’s

Gym franchises. Although Vertical Fitness did not own the

gym Van Patten joined, it operated and managed the gym. In

the spring of 2012, many of the Gold’s Gym franchises in

Wisconsin and Minnesota, including the gym that Van Patten

had joined, ended their franchise relationships with Gold’s

Gym and became “Xperience Fitness” gyms. Vertical Fitness

owned the “Xperience Fitness” brand and trademark.

After the brand change, Vertical Fitness turned to its

marketing partner, Defendant-Appellee Advecor, Inc., to help

announce the gym’s brand change to current and former gym

members and invite members to return. One such

announcement was made via text messages. Vertical Fitness

gave the phone numbers of former or inactive gym members

to Advecor, and Advecor sent the text messages. Van Patten

received his first text message on May 14, 2012. The

message read:

Golds [sic] 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

He received a similar text on June 25, 2012.

Van Patten filed a putative class action lawsuit arising out

of the text messages on June 28, 2012. He alleged that the

unauthorized text messages Defendants sent “caused

consumers actual harm,” including “the aggravation that

VAN PATTEN V. VERTICAL FITNESS GROUP6

necessarily accompanies wireless spam” and that consumers

“pay their cell phone service providers for the receipt of such

wireless spam.” Van Patten asserted three causes of action:

(1) violation of the Telephone Consumer Protection Act of

1991, 47 U.S.C. § 227; (2) violation of California Business

and Professions Code § 17538.41; and (3) violation of

California Business and Professions Code § 17200. The

district court granted Van Patten leave to file a first amended

complaint, in which he added Advecor as a defendant and

added the allegation that he received two text messages. The

district court granted Van Patten’s motion for class

certification,

but on May 20, 2014, the court granted

summary judgment in favor of Defendants on all of Van

Patten’s claims.

On appeal, Van Patten argues that the district court erred

by granting Defendants’ motions for summary judgment on

all three of his claims. We have jurisdiction under 28 U.S.C.

§ 1291. We review a district court’s grant of summary

judgment de novo. See Satterfield v. Simon & Schuster, Inc.,

569 F.3d 946, 950 (9th Cir. 2009). Summary judgment is

appropriate only when “there is no genuine issue as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

We address each of Van Patten’s claims in turn.

The district court certified a national class for Van Patten’s TCPA

claim but declined to certify a California-based subclass for Van Patten’s

California Business and Professions Code § 17538.41 and § 17200 claims.

VAN PATTEN V. VERTICAL FITNESS GROUP 7

A. The Telephone Consumer Protection Act of 1991

The TCPA makes it “unlawful for any person within the

United States . . . to use any telephone facsimile machine,

computer, or other device to send, to a telephone facsimile

machine, an unsolicited advertisement . . . .” 47 U.S.C.

§ 227(b)(1)(C). The TCPA generally prohibits making

nonemergency, unsolicited calls advertising “property, goods,

or services” using automatic dialing systems and prerecorded

messages to telephones and cellular phones. Id. § 227(a)(5);

id. § 227 (b)(1)(A)(iii). Although the TCPA does not define

a “call,” the Federal Communications Commission (FCC),

the agency implementing the TCPA, has interpreted the

TCPA to “encompass[ ] both voice calls and text calls to

wireless numbers including, for example, short message

service (SMS) calls,” which are generally referred to as text

messages. In re Rules & Regulations Implementing the

Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd.

14014, 14115 (July 3, 2003) (the “2003 Order”); see also

Satterfield, 569 F.3d at 954 (holding that the FCC’s

interpretation that a text message is a “call” under the TCPA

is reasonable). A call or text is not unsolicited, however,

where the recipient gave the sender “prior express consent.”

47 U.S.C. § 227(b)(1)(A).

1. Article III Standing

Before turning to the merits of Van Patten’s TCPA claim,

we first address whether Van Patten has standing under

Article III of the Constitution. Article III limits federal

judicial power to “Cases” and “Controversies,” U.S. Const.

art. III, § 2, and standing to sue “limits the category of

litigants empowered to maintain a lawsuit in federal court to

seek redress for a legal wrong,” Spokeo, Inc. v. Robins,

VAN PATTEN V. VERTICAL FITNESS GROUP8

136 S. Ct. 1540, 1547 (2016). To satisfy Article III standing,

“[t]he plaintiff must have (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Id. (applying the traditional standing test

from Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992)). A plaintiff establishes injury in fact, if he or she

suffered “‘an invasion of a legally protected interest’ that is

‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Id. at 1548 (quoting Lujan,

504 U.S. at 560).

The Supreme Court most recently addressed the concrete

injury requirement of standing in Spokeo v. Robins. The

Court reiterated that “Article III standing requires a concrete

injury even in the context of a statutory violation,” and that a

plaintiff does not “automatically satisf[y] the injury-in-fact

requirement whenever a statute grants a person a statutory

right and purports to authorize that person to sue to vindicate

that right.” Id. at 1549. In Spokeo, the plaintiff alleged

violations of the Fair Credit Reporting Act (FCRA), based on

a website’s publication of inaccurate consumer information

regarding the plaintiff’s age, martial status, educational

background, and other demographic information. Id. at 1546.

The FCRA sets procedural requirements for consumer

reporting agencies to ensure that credit reporting is fair and

accurate. See 15 U.S.C. § 1681e. On appeal, the Ninth

Circuit had held that the relevant interests protected by the

FCRA were sufficiently concrete and particularized to satisfy

the requirements of Article III standing. Id. at 1546. The

Supreme Court, however, vacated the judgment and

remanded the case, holding that the standing analysis was

incomplete because we had not distinguished between

concreteness and particularization. Id. at 1550. The Supreme

VAN PATTEN V. VERTICAL FITNESS GROUP 9

Court did not determine whether the plaintiff had suffered an

injury sufficient to confer standing to sue, but emphasized

that a plaintiff cannot “allege a bare procedural violation,

divorced from any concrete harm, and satisfy the injury-in-

fact requirement of Article III.” Id. at 1549. The Court also

observed that intangible harms a plaintiff alleges can satisfy

the injury-in-fact requirement. See id. (“[W]e have

confirmed in many of our previous cases that intangible

injuries can nevertheless be concrete.”).

Here, Defendants argue that Van Patten did not establish

a concrete injury-in-fact necessary to pursue his TCPA claim

in light of Spokeo.

We disagree.

As the Supreme Court explained in Spokeo, “both history

and the judgment of Congress play important roles” in

supporting our conclusion that a violation of the TCPA is a

concrete, de facto injury. Id. Actions to remedy defendants’

invasions of privacy, intrusion upon seclusion, and nuisance

have long been heard by American courts, and the right of

privacy is recognized by most states. See Restatement

(Second) of Torts § 652(B) (Am. Law Inst. 1977). And in

enacting the TCPA, Congress made specific findings that

“unrestricted telemarketing can be an intrusive invasion of

privacy” and are a “nuisance.” Telephone Consumer

Protection Act of 1991, Pub. L. 102–243, § 2, ¶¶ 5, 10, 12,

13, 105 Stat. 2394 (1991); see also Mims v. Arrow Fin.

Servs., LLC, 132 S. Ct. 740, 745 (2012). Congress sought to

protect consumers from the unwanted intrusion and nuisance

of unsolicited telemarketing phone calls and fax

After oral argument, we ordered the parties to file supplemental

briefs addressing whether Spokeo affects Van Patten’s standing to bring

his TCPA claim.

VAN PATTEN V. VERTICAL FITNESS GROUP10

advertisements. See Pub. L. 102–243, § 2, ¶ 12. The session

law for the TCPA itself stated: “Banning such automated or

prerecorded telephone calls to the home, except when the

receiving party consents to receiving the call or when such

calls are necessary in an emergency situation affecting the

health and safety of the consumer, is the only effective means

of protecting telephone consumers from this nuisance and

privacy invasion.” Id. We also have recognized this

congressional purpose. Satterfield, 569 F.3d at 954.

The TCPA establishes the substantive right to be free

from certain types of phone calls and texts absent consumer

consent. Congress identified unsolicited contact as a concrete

harm, and gave consumers a means to redress this harm. We

recognize that Congress has some permissible role in

elevating concrete, de facto injuries previously inadequate in

law “to the status of legally cognizable injuries.” Spokeo,

136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 578). We

defer in part to Congress’s judgment, “because Congress is

well positioned to identify intangible harms that meet

minimum Article III requirements.” Id. We also recognize

that “Congress’ role in identifying and elevating intangible

harms does not mean that a plaintiff automatically satisfies

the injury-in-fact requirement whenever a statute grants a

person a statutory right and purports to authorize that person

to sue to vindicate that right.” Id.

Congress aimed to curb telemarketing calls to which

consumers did not consent by prohibiting such conduct and

creating a statutory scheme giving damages if that prohibition

was violated. Unlike in Spokeo, where a violation of a

procedural requirement minimizing reporting inaccuracy may

not cause actual harm or present any material risk of harm,

see id. at 1550, the telemarketing text messages at issue here,

VAN PATTEN V. VERTICAL FITNESS GROUP 11

absent consent, present the precise harm and infringe the

same privacy interests Congress sought to protect in enacting

the TCPA. Unsolicited telemarketing phone calls or text

messages, by their nature, invade the privacy and disturb the

solitude of their recipients. A plaintiff alleging a violation

under the TCPA “need not allege any additional harm beyond

the one Congress has identified.” Id. at 1549 (emphasis in

original). Cf. Gomez v. Campbell-Ewald Co., 136 S. Ct. 663,

672 (2016) (affirming that “the District Court retained

jurisdiction to adjudicate Gomez’s [TCPA] complaint.”).

We hold that Van Patten alleged a concrete injury in fact

sufficient to confer Article III standing.

2. Prior Express Consent

The parties do not dispute that Defendants sent Van

Patten text messages using an automatic telephone dialing

system; we need only assess whether Van Patten gave prior

express consent. Van Patten contends that the district court

erred by granting Defendants’ motion for summary judgment

on his TCPA claim because he never gave “prior express

consent” to receive text messages from Defendants, and even

if he had, he revoked that consent by cancelling his gym

membership. We address those contentions in turn, but

disagree and conclude that Van Patten—based on the context

in which he gave his phone number—consented to receiving

the text messages. Also, Van Patten did not expressly revoke

his consent.

Express consent is not an element of a plaintiff’s prima

facie case but is an affirmative defense for which the

VAN PATTEN V. VERTICAL FITNESS GROUP12

defendant bears the burden of proof.

See In the Matter of

Rules & Regulations Implementing the Tel. Consumer Prot.

Act of 1991, 23 F.C.C. Rcd. 559, 565 (Jan. 4, 2008) (the

“2008 Order”) (“[W]e conclude that the creditor should be

responsible for demonstrating that the consumer provided

prior express consent . . . . Should a question arise as to

whether express consent was provided, the burden will be on

the creditor to show it obtained the necessary prior express

consent.”); see also Grant v. Capital Mgmt. Servs., L.P.,

449 F. App’x 598, 600 n.1 (9th Cir. 2011) (“‘[E]xpress

consent’ is not an element of a TCPA plaintiff’s prima facie

case, but rather is an affirmative defense for which the

defendant bears the burden of proof.”). The district court

correctly stated that prior express consent is a complete

defense to Van Patten’s TCPA claim. Van Patten v. Vertical

Fitness Grp., LLC, 22 F. Supp. 3d 1069, 1073 (S.D. Cal.

2014). We agree and next address whether there was prior

express consent that was effective here as a defense to the

text messages that were sent.

Because the TCPA does not define the phrase “prior

express consent,” we turn to the FCC’s Orders and Rulings,

In Meyer v. Portfolio Recovery Associates, we set out a TCPA claim

as: “(1) the defendant called a cellular telephone number, (2) using an

automatic telephone dialing system, (3) without the recipient’s prior

express consent.” 707 F.3d 1036, 1043 (9th Cir. 2012). We there

discussed prior express consent as a consideration relating to a TCPA

claim analyzed in the context of a preliminary injunction and whether the

plaintiff established that he was likely to succeed on the merits of his

claim. See id. We think it plain from the statutory language that prior

express consent is an affirmative defense, not an element of a TCPA

claim, but we do not retreat from the principle that a plaintiff seeking a

preliminary injunction must show the absence of prior express consent as

pertinent to the likelihood of success on the merits.

VAN PATTEN V. VERTICAL FITNESS GROUP 13

which interpret and clarify the term. Defendants rely on In re

Rules & Regulations Implementing the Telephone Consumer

Protection Act of 1991, 7 F.C.C. Rcd. 8752 (Oct. 16, 1992)

(the “1992 Order”) and stress one sentence in particular:

“[P]ersons who knowingly release their phone numbers have

in effect given their invitation or permission to be called at

the number which they have given, absent instructions to the

contrary.” 7 F.C.C. Rcd. at 8769. Emphasizing this

language, Defendants argue that Van Patten gave “prior

express consent” to being contacted at his cellular telephone

number by providing that number in connection with his

application for a gym membership.

We do not question, in this appeal from an order of the

district court, the validity of the FCC’s interpretation of

“prior express consent.” See Mais v. Gulf Coast Collection

Bureau, Inc., 768 F.3d 1110, 1119–21 (11th Cir. 2014); US

W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n.2 (9th

Cir. 2002). We read the 1992 Order in a way that harmonizes

with the TCPA’s text and purpose, as well as the FCC’s other

orders and rulings. In our view, an effective consent is one

that relates to the same subject matter as is covered by the

challenged calls or text messages.

The TCPA was created in response to the ever increasing

consumer complaints regarding telemarketing calls. “The

purpose and history of the TCPA indicate that Congress was

trying to prohibit the use of [automatic dialing] to

communicate with others by telephone in a manner that

would be an invasion of privacy.” Satterfield, 569 F.3d at

954. Taking into account the statutory language that prior

consent must be “express” and the TCPA’s legislative

history, we do not read the 1992 Order to mean that the FCC

has determined that providing a phone number in itself means

VAN PATTEN V. VERTICAL FITNESS GROUP14

that the consumer has expressly consented to contact for any

purpose whatsoever. Instead, the consent must be considered

to relate to the type of transaction that evoked it.

To aid the FCC’s interpretation of “prior express consent”

in its 1992 Order, the FCC cited a House of Representatives

report on the TCPA, which stated that when people provide

their telephone numbers, “the called party has in essence

requested the contact by providing the caller with their

telephone number for use in normal business

communications.” 7 F.C.C. Rcd. at 8769 n.57 (quoting H.R.

Rep. No. 102–317 at 13) (emphasis added). This supports

that a consumer consents to contact for transaction-related

communications when the consumer provides his or her

phone number to the caller; it does not support the view,

argued by Defendants, that the consumer consents to any and

all contact.

The FCC’s 2008 Order interpreting prior express consent

also indicates a more narrow view than assuming that giving

a phone number alone amounts to consent to receive calls or

texts at that number irrespective of purpose. In its 2008

Order, the FCC was asked by a trade association to rule on

whether a creditor has permission to call a debtor. See 2008

Order, 23 F.C.C. Rcd. at 563. The FCC “conclude[d] that the

provision of a cell phone number to a creditor, e.g., as part of

a credit application, reasonably evidences prior express

consent by the cell phone subscriber to be contacted at that

number regarding the debt.” Id. at 564 (second emphasis

added). The FCC cited to the legislative history of the TCPA

and the House Report’s exception for “normal business

communications.” Id. The 2008 Order went on to state that

giving a contact phone number is not prior express consent

for any contact, instead “prior express consent is deemed to

VAN PATTEN V. VERTICAL FITNESS GROUP 15

be granted only if the wireless number was provided by the

consumer to the creditor, and that such number was provided

during the transaction resulted in the debt owed.” Id. at

564–65.

FCC orders that took effect after the text messages at

issue in this case further explain the FCC’s interpretation of

“prior express consent.” In 2012, the FCC imposed further

restrictions on telemarketing calls and required prior express

written consent for texts and calls that “include[] or

introduce[] an advertisement” or “constitute[] telemarketing.”

See 47 C.F.R. § 64.1200(a)(2). Because the alleged conduct

here took place before the rule took effect on October 16,

2013, Defendants need not have obtained prior express

written consent from Van Patten. In the 2012 Order, the FCC

addressed a comment that argued against requiring prior

express written consent. The commenter had urged that

“customers may orally provide their wireless phone number

as a point of contact and therefore those customers expect

marketing and service calls.” In the Matter of Rules &

Regulations Implementing the Tel. Consumer Prot. Act of

1991, 27 F.C.C. Rcd. 1830, 1840 (Feb. 15, 2012) (the “2012

Order”) (emphasis in original). The FCC disagreed with this

broad interpretation of consent: “Consumers who provide a

wireless phone number for a limited purpose – for service

calls only – do not necessarily expect to receive telemarketing

calls that go beyond the limited purpose for which oral

consent regarding service calls may have been granted.” Id.

A 2014 FCC ruling on the scope of a consumer’s consent

also informs our understanding of the FCC’s interpretation of

prior express consent. The ruling addressed whether a

consumer’s consent in joining a text-based social group

constitutes prior express consent to receive administrative

VAN PATTEN V. VERTICAL FITNESS GROUP16

texts confirming the consumer’s interest in joining the group.

See In re GroupMe, Inc./Skype Communications S.A.R.L.

Petition for Expedited Declaratory Ruling, 29 F.C.C. Rcd.

3442, 3443 (Mar. 27, 2014). Reasoning that “Congress did

not expect the TCPA to be a barrier to normal, expected, and

desired business communications,” id. at 3444, the FCC

considered the GroupMe administrative texts “to be normal

business communications,” id. at 3445. The FCC held that

[t]o the extent that a consumer, in the absence

of instructions to the contrary, agrees to

participate in a GroupMe group, agrees to

receive associated calls and texts, and

provides his or her wireless telephone number

to the group organizer for that purpose, we

interpret that as encompassing consent for

GroupMe to send certain administrative texts

that relate to the operation of that GroupMe

group.

Id. at 3446. The FCC reasoned that the consumer gave

permission to be contacted at that number in connection with

that particular GroupMe texting group. Id.

We conclude that the FCC has established no rule that a

consumer who gives a phone number to a company has

consented to be contacted for any reason. Instead, FCC

orders and rulings show that the transactional context matters

in determining the scope of a consumer’s consent to contact.

In this case, we hold that as a matter of law Van Patten

gave prior express consent to receive Defendants’ text

messages. He gave his cellular telephone number for the

purpose of a gym membership contract with a Gold’s Gym

VAN PATTEN V. VERTICAL FITNESS GROUP 17

franchised gym. Van Patten giving his phone number for the

purpose of his gym membership agreement did not amount to

consent to be contacted for all purposes. Under the logic of

the FCC’s orders, Van Patten gave his consent to being

contacted about some things, such as follow-up questions

about his gym membership application, but not to all

communications. The scope of his consent included the text

messages’ invitation to “come back” and reactivate his gym

membership. The text messages at issue here were part of a

campaign to get former and inactive gym members to return,

and thus related to the reason Van Patten gave his number in

the first place, to apply for a gym membership.

The parties also dispute whether Van Patten gave prior

express consent to be contacted by Vertical Fitness.

Defendants contend that Van Patten gave Vertical Fitness

prior express consent because the particular gym he joined

did not change ownership, Vertical Fitness remained the

operator, and only the brand identity changed from Gold’s

Gym to Xperience Fitness. From when Van Patten initially

joined the gym to when the text messages were sent,

ownership and operation of the gym did not change. That the

brand affiliation changed does not affect that the gym was

owned and operated by the same entities.

3. Revocation of Prior Express Consent

Van Patten further argues that even if he gave prior

express consent, by submitting his phone number in the gym

membership application, he revoked his consent when he

cancelled the gym membership. The parties do not seriously

dispute that consumers can revoke their consent, but they

disagree as to whether Van Patten revoked his consent. We

hold that although consumers may revoke their prior express

VAN PATTEN V. VERTICAL FITNESS GROUP18

consent, Van Patten’s gym cancellation was not effective in

doing so here.

We first address whether consent is revocable under the

TCPA. The TCPA does not explicitly grant consumers the

right to revoke their prior express consent. See 47 U.S.C.

§ 227; see also 2012 Order, 27 F.C.C. Rcd. at 15394 ¶ 8

(noting that neither text nor legislative history of the TCPA

directly addresses circumstances where prior express consent

is deemed revoked). At least two of our sister circuits and

several lower courts have concluded that consumers may

revoke their prior express consent without temporal

limitations. See Osorio v. State Farm Bank, F.S.B., 746 F.3d

1242, 1255–56 (11th Cir. 2014); Gager v. Dell Fin. Servs.,

LLC, 727 F.3d 265, 272–73 (3d Cir. 2013); Munro v. King

Broad. Co., No. C13-1308JLR, 2013 WL 6185233, at *3

(W.D. Wash. Nov. 26, 2013) (collecting cases).

Courts have given three main reasons for concluding that

consumers may revoke their consent under the TCPA. First,

such a holding is consistent with the common law principle

that consent is revocable. See Gager, 727 F.3d at 270.

Courts have found that Congress did not depart from the

common law understanding of consent, and at common law,

consent may be withdrawn. Id. (citing Neder v. United

States, 527 U.S. 1, 21 (1999) (“[W]here Congress uses terms

that have accumulated settled meaning under . . . the common

law, a court must infer, unless the statute otherwise dictates,

that Congress means to incorporate the established meaning

of these terms.”)).

Second, allowing consumers to revoke their prior consent

aligns with the purpose of the TCPA. Id. at 271; Osorio,

746 F.3d at 1255. Because the TCPA is a remedial statute

VAN PATTEN V. VERTICAL FITNESS GROUP 19

intended to protect consumers from unwanted automated

telephone calls and messages, it should be construed in

accordance with that purpose. See Gager, 727 F.3d at 271.

Allowing consent to be revoked is consistent with that

purpose.

Third, the FCC has stated persuasive guidance implying

that consumers may revoke their consent. In a declaratory

ruling in SoundBite Communications, Inc., 27 F.C.C. Rcd.

15391, the FCC stated that “requests to stop receiving voice

calls . . . can be confirmed during the same call in which a

consumer has expressed a desire to opt out . . . .” 2012 Order,

27 F.C.C. Rcd. at 15398 ¶ 13. The FCC stated that a

consumer may revoke his or her prior express consent by

sending an opt-out request to the sending party. Id. at 15397

¶ 11 n.47; id. at 15398 ¶ 13. For example, a consumer may

request “that no further text messages be sent.” Id. at 15394

¶ 7. While the thrust of the SoundBite ruling explained why

it is permissible to send a confirmatory opt-out message, the

decision indicates that the FCC endorses the ability of

consumers to revoke their prior express consent. See Gager,

727 F.3d at 271–72.

The FCC also has since clarified that consumers may

revoke consent in its July 2015 Declaratory Ruling and Order.

See In re Rules & Regulations Implementing the Telephone

Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961 (July

10, 2015) (the “2015 Order”). The 2015 Order stressed that

consumers “have a right to revoke consent, using any

reasonable method including orally or in writing.” Id. at 7996

¶ 64. The FCC also specified ways that a consumer may

revoke a call: “by way of a consumer-initiated call, directly

in response to a call initiated or made by a caller, or at an in-

store bill payment location, among other possibilities.” Id.

VAN PATTEN V. VERTICAL FITNESS GROUP20

The FCC emphasized that the TCPA does not permit the

calling party to designate the exclusive means of revocation,

and instead, the called party must “clearly express his or her

desire not to receive further calls.” Id. at 7997 ¶ 67. It is

reasonable for the FCC to interpret the TCPA to permit

revocation of consent. See Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984).

Concluding that the reasoning of our sister circuits is

persuasive and the FCC’s interpretation of the TCPA is

reasonable, we agree that the TCPA permits consumers to

revoke their prior express consent to be contacted by

telephone autodialing systems.

We next address whether in fact Van Patten revoked his

consent. Van Patten argues that cancelling his gym

membership sufficiently communicated his desire to no

longer be contacted. But we conclude that because Van

Patten did not clearly express his desire not to receive further

text messages, he did not revoke his consent.

Revocation of consent must be clearly made and express

a desire not to be called or texted. That was not done here.

No evidence in the record suggests that Van Patten told

Defendants to cease contacting him on his cell phone. Some

ways Van Patten could have communicated his revocation

include, but are not limited to, plainly telling Defendants not

to contact him on his cell phone when he called to cancel his

gym membership or messaging “STOP” after receiving the

first text message.

Because Van Patten did not revoke his consent to be

contacted, we affirm the district court’s grant of summary

judgment for Defendants on their affirmative defense that

VAN PATTEN V. VERTICAL FITNESS GROUP 21

Van Patten consented to receive the text messages at issue

here.

B. California Business and Professions Code

§ 17538.41 and § 17200

Van Patten also contends that the district court erred by

granting summary judgment to Defendants on his California

Business and Professions Code claims. We disagree and

affirm the district court’s grant of summary judgment on his

state-based claims.

Van Patten alleges that Defendants violated California

Business and Professions Code § 17538.41, which provides

that “no . . . entity conducting business . . . in this state shall

transmit, or cause to be transmitted, a text message

advertisement to a mobile telephony services handset, pager,

or two-way messaging device that is equipped with short

message capability or any similar capability allowing the

transmission of text messages.” Van Patten additionally

alleges Defendants violated California Business and

Professions Code § 17200, which provides remedies for “any

unlawful, unfair or fraudulent business act or practice.”

Under California law, Van Patten does not have standing

to bring either of these statutory claims. Proposition 64,

passed by California citizens in 2004, sets a more limited

standing requirement on plaintiffs seeking relief under

California’s Unfair Competition Law and/or False

Advertising Law. Plaintiffs must “(1) establish a loss or

deprivation of money or property sufficient to qualify as

injury in fact, i.e., economic injury, and (2) show that that

economic injury was the result of, i.e., caused by, the unfair

business practice or false advertising that is the gravamen of

VAN PATTEN V. VERTICAL FITNESS GROUP22

the claim.” Kwikset Corp. v. Superior Court, 246 P.3d 877,

885 (Cal. 2011) (emphasis in original). This economic injury

requirement is “more restrictive than federal injury in fact”

because it encompasses fewer kinds of injuries. Id. at 886.

It was not, however, “intended to be quantitatively more

difficult to satisfy” than the threshold for economic injuries

that satisfy Article III standing. Id. That is, “the quantum of

lost money or property necessary to show standing” under

Proposition 64 is only so much as would satisfy federal

standing. Id. This economic injury requirement was made

with identical language to both relevant remedial sections of

Van Patten’s California claims. See Cal. Bus. & Prof. Code

§ 17535 (“Actions for injunction under this section may be

prosecuted by . . . any person who has suffered injury in fact

and has lost money or property as a result of a violation of

this chapter.”); Cal. Bus. & Prof. Code § 17204 (“Actions for

relief pursuant to this chapter shall be prosecuted . . . by a

person who has suffered injury in fact and has lost money or

property as a result of the unfair competition.”); see also

Kwikset, 246 P.3d at 883–85.

Van Patten cannot prove that the text messages caused

him to suffer an economic injury “which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural

or hypothetical.” Kwikset, 246 P.3d at 886. Although Van

Patten argues that he was charged for the text messages sent

by Defendants, the record shows that he paid for an unlimited

text messaging plan. Under this unlimited plan, regardless of

how many text messages Van Patten received during a month,

he still paid the same monthly fee. Van Patten contends that

he was still charged for the texts because every text message

he receives under his unlimited text messaging service

ultimately affects his cellular telephone provider’s bundled

pricing. His argument is that cellular companies raise the

VAN PATTEN V. VERTICAL FITNESS GROUP 23

prices of their bundled plans when text message traffic

increases to the point that cellular operators’ profit margins

decrease too much. But this argument is hypothetical and

conjectural, and Van Patten has not demonstrated that any

price increase was caused by Defendants’ conduct. Van

Patten has not shown and cannot demonstrate any economic

injury.

Van Patten lacks standing to bring his claim under

California Business and Professions Code §17538.41 and

§ 17200. See id. at 883–87. We affirm the district court’s

grant of summary judgment in favor of Defendants on these

claims.

III

We affirm the district court’s grant of summary judgment

in favor of Defendants on all claims presented.

AFFIRMED.