District Court (Ind.) Denies Class Cert. in TCPA “Stop-texting” Class Action Because of Individualized Facts as to Whether Means Used to Revoke Consent to Be Called Was Reasonable Under 2015 FCC Order

The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int’l v. FCC, No. 15-1211 (D.C.C. July 13, 2015). The Court, then, must determine whether each of the text messages listed in the TCPA Stop Texting Class definition and the message sent by the Plaintiff constitute revocations of consent. For this reason, revocation of consent will not be proved or disproved on evidence and theories applicable to the proposed class as a whole. Rather, whether revocation occurred in each instance depends on whether a particular text message is a reasonable revocation. See, e.g., Epps v. Earth Fare, Inc., No. CV-16-8221-SJO (SSx), 2017 WL 1424637, at *5 (C.D. Cal. Feb. 27, 2017) (finding that plaintiff did not plausibly alleged that her revocation was effective when, “[w]ithout explanation, Plaintiff ignored Defendant’s clear” opt-out instructions and instead sent five non-compliant text messages). To make those determinations, the Court would be required to examine facts related to the Plaintiff’s reply message, as well as to each of the six text messages individually, and the Court will not analyze the merits of the case here.  See Messner, 669 F.3d at 811 (“[T]he court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits”) (citations omitted).