9th Cir. Affirms Van Patten TCPA Rule that Prior Express Consent Eviscerates TCPA Claim

In Moskowitz v. Am. Sav. Bank, F.S.B., No. 20-15024, 2022 U.S. App. LEXIS 16016, at *8 (9th Cir. June 10, 2022)

Moskowitz argues the district court erred in granting summary judgment for ASB because ASB did not have the consent required under the TCPA to send the responsive text messages to Moskowitz. We have already determined that the type of message Moskowitz sent ASB provided the express consent required for each of ASB’s responsive text messages. See Van Patten, 847 F.3d at 1043-45. “Express consent is not an element of a plaintiff’s prima facie case but is an affirmative defense[,]” and it is a “complete defense” to a TCPA claim. Id. at 1044.  The TCPA prohibits making calls to any cellular number by using a system that dials telephone calls automatically or by using an “artificial or prerecorded voice'” unless the caller received “prior express consent” from the recipient. 47 U.S.C. § 227(b). 4 The TCPA does not define prior express consent. In Van Patten, we adopted the FCC’s interpretation of the text: that a person who knowingly releases his number consents to be called at that number, and that consent is “effective” where the responsive messages relate to the same subject or type of transaction as the messages that led to the response. 847 F.3d at 1044-45; In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992).  Moskowitz argues that we have, and the Van Patten court had, discretion to refuse to employ the FCC’s order interpreting “prior express consent.” But Van Patten is a published opinion and binding precedent. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding a published opinion may be overruled by a three-judge panel only when it is clearly irreconcilable with an intervening higher authority). Further, Van Patten’s reasoning—that providing a telephone number to a business as part of telephone communication to that business constitutes express consent to a responsive contact from that business within the scope of that communication—is even more directly applicable to the facts of this case than were the facts of Van Patten. 847 F.3d at 1046 (explaining that “the transactional context matters in determining the scope of a consumer’s consent to contact”). In that case, Van Patten’s former gym contacted him offering to reactivate his membership after he had cancelled the membership, but he had not revoked his prior express consent for the gym to contact him about his membership. Id. at 1046-47. In this case, unlike Van Patten, it was Moskowitz who initiated contact with ASB, and ASB that automatically replied to each contact with a single responsive text message to confirm receipt and provide information that the short code was ASB’s and how to stop or continue communication. By sending text messages to ASB’s short code, Moskowitz expressly consented to receive reply text messages. Each informative and confirmatory reply text message from ASB falls within the scope of Moskowitz’s text message initiating contact, and therefore, “the scope of [Moskowitz’s] consent to contact.” Id. at 1046. Thus, the district court did not err in applying Van Patten and finding for ASB, and we affirm the grant of summary judgment for ASB.