District Court (NJ) Says TCPA Plaintiff Did Not Revoke Consent by Sending Long-winded Revocation Instead of Simply Following Sender’s Simple “Opt-out” Instruction

Here, Plaintiff has pled she received replies to her efforts to opt out instructing her to text “STOP” to opt out of future texts. (ECF No. 1 ¶ 14.) Accepting the facts in the Complaint as true, the Court finds Plaintiff has not pled a claim for a TCPA violation. Plaintiff cannot plausibly assert she “had a reasonable expectation that … she could effectively communicate … her request for revocation to [Defendant].” See 30 FCC Rcd. at 7996 ¶ 64 n.233. Indeed, the only reasonable expectation Plaintiff could have had is the opposite—her request for revocation would not be successful. Further, Plaintiff has not alleged Defendant has “deliberately design[ed] systems or operations in ways that make it difficult or impossible to effectuate revocations.” See id. To the contrary, the facts in the Complaint suggest Plaintiff herself adopted a method of opting out that made it difficult or impossible for Defendant to honor her request.  In a case with nearly identical facts, the Central District of California dismissed the complaint with prejudice. Epps v. Earth Fare, Inc., No. 16-8221, 2017 WL 1424637, at *6 (C.D. Cal. Feb. 27, 2017). The Epps court found the plaintiff had failed to state a valid TCPA claim because “heeding Defendant’s opt-out instruction would not have plausibly been more burdensome on Plaintiff than sending verbose requests to terminate the messages.” Id. at *5. The Epps court also found the plaintiff failed to allege the defendant made it “difficult or impossible to effectuate revocations.” Id. (quoting FCC Rcd. at 7996 ¶ 64). Plaintiff argues the Court should not consider Defendant’s reliance on Epps, because Defendant cited the case for the first time in its reply brief. (Pl. Sur Reply (ECF No. 18-2) at 1.) Alternatively, Plaintiff argues the Epps court misapplied the FCC’s ruling, because the court considered the consumer’s burden in revoking consent, rather than the caller’s burden. (Id. at 3-4 (citing 30 FCC Rcd. at 7996 ¶ 64 n.233).)  The Court finds the Epps‘ court analysis and reasoning persuasive. Plaintiff ignores the Epps court’s reasoning that Epps failed to allege the defendant deliberately designed a system that made it difficult or impossible to opt out. Epps, 2017 WL 1424637, at *5 (citing 30 FCC Rcd. at 7996 ¶ 64 n.233).) The Epps court’s remark about the comparative ease of texting “STOP” versus replying with several sentences was not essential to its ruling. See id. This Court reaches the same conclusion in this matter. Plaintiff does not allege Defendant’s purposefully made opting out difficult or impossible. Rather, Plaintiff bases her claim on the fact that Defendant specified a means of opting out. The FCC’s ruling are clear—a caller may not designate a method of opting out “in ways that make it difficult or impossible to effectuate revocations” 30 FCC Rcd. at 7996 ¶ 64 n.233 Plaintiff’s arguments to the contrary defy both the FCC’s rulings and common sense.