In Karmen Self-Forbes v. Advance Call Technologies, LLC, 2017 WL 1364206 (D. Nev. 2017), Judge Mahan granted summary judgment to a TCPA defendant based on its call records demonstrating that the Plaintiff did not revoke consent, despite Plaintiff’s affidavit that she did.
“Express consent is not an element of a plaintiff’s prima facie case but is an affirmative defense for which the defendant bears the burden of proof.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017). The TCPA does not explicitly grant consumers the right to revoke their prior express consent. Id. at 1047 (citing 47 U.S.C. § 227). However, the Ninth Circuit has held that consumers may revoke their prior express consent without temporal limitations. Id. at 1048. “Revocation of consent must be clearly made and express a desire not to be called or texted.” Id. Defendant asserts that it received no written or verbal communication from plaintiff prior to service of the complaint. (ECF No. 9 at 5). In support, defendant attaches an account activity log to defendant’s motion for summary judgment. (ECF No. 9, exh. 4). Defendant argues that the activity logs establish that in the 500 plus calls it made through its ATDS to plaintiff’s cellular phone number, none resulted in direct contact with plaintiff. (ECF No. 9, exh. 4). In response, plaintiff asserts that the few times she did pick up defendant’s calls, she requested and spoke with a representative and told defendant stop calling her, thereby revoking prior consent, if any. (ECF No. 12 at 3). In support, plaintiff attaches her affidavit attesting to that effect. (ECF No. 12, exh. 2) However, plaintiff cannot avoid summary judgment by relying on conclusory allegations unsupported by factual data. See Taylor, 880 F.2d at 1045. Despite having the opportunity to review defendant’s activity log and all the dates and times of the calls, plaintiff does not dispute the accuracy of the activity log. (ECF No. 12). Nor has plaintiff specified a particular date on which she spoke with defendant’s representatives or the name of one of those representatives. Rather, plaintiff merely asserts that she spoke with a representative several times in January and revoked consent. While plaintiff provides her affidavit in support, the affidavit merely restates the allegations set forth in the complaint and does not set forth specific facts sufficient to raise a genuine issue for trial. See Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007) (explaining that a “conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact”) (internal quotation marks and citation omitted). In light of the foregoing, the court finds that defendant has met its initial burden of showing that plaintiff gave prior express consent. Plaintiff, however, has failed to meet her burden to establish the existence of a genuine dispute by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324. Plaintiff’s affidavit attesting that she spoke with a representative several times and revoked consent is merely colorable absent specific dates or names. Accordingly, the court will grant defendant’s motion for summary judgment.