9th Cir. Says TCPA Plaintiff May Have Orally Revoked Consent to Be Called; Reverses District Court’s Granting Summary Judgment

In Self-Forbes v. Advanced Call Center Technologies, LLC, Case No. 16-15804, 2018 WL 5414613 (9th Cir. October 29, 2018), the Court of Appeals for the Ninth Circuit in an unpublished decision reversed the District Court’s grant of summary judgment to a TCPA defendant on the basis that the Plaintiff testified that she orally revoked consent to be called.

We have recognized three elements for a TCPA violation: (1) the defendant called a cellular telephone number (2) using an ATDS or an artificial or prerecorded voice (3) without the recipient’s prior express consent. See, e.g., Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). In this case, ACT does not dispute its use of an ATDS to call Self-Forbes’s cellphone. Self-Forbes does not dispute that she applied for a QVC credit card and agreed to the terms and conditions, thereby expressly consenting to phone calls for debt collection purposes. Rather, the sole issue is whether Self-Forbes orally revoked her consent as she alleges. Although the TCPA does not explicitly grant consumers the right to revoke their prior express consent, we have recently held that consumers may revoke consent without temporal limitations. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1047-48 (9th Cir. 2017). In this case, ACT claimed that its call logs establish that it never spoke with Self-Forbes. The district court accepted ACT’s claim and disregarded Self-Forbes’s conflicting testimony—that she spoke with a female representative in early 2013 and told that individual to stop calling her. The district court improperly weighed the evidence and found ACT’s evidence to be more credible. This factual determination—at the summary judgment stage—was premature, and the district court usurped the role of the factfinder at trial. Self-Forbes presented sufficient evidence to establish a genuine dispute of fact as to whether she revoked her consent. Her declaration and deposition contained detailed facts—the approximate date of the alleged phone calls, what she allegedly told the ACT representative, and that the ACT agent was female—all of which were corroborated by ACT’s call logs. Furthermore, ACT lacked an incentive to document Self-Forbes’s alleged revocation of consent because it had erroneously classified her number as a landline rather than a cellphone. Accordingly, the district court erred in granting summary judgment. REVERSED and REMANDED.