9th Cir. Says TCPA Plaintiff Did Not Properly Revoke Consent to Be Called

In Epps v. Earth Fare, Inc., No. 17-55413, 2018 WL 5314055 (9th Cir. October 26, 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA Plaintiff did not properly revoke consent to be called.

Epps alleged that although she revoked her previous consent to receive text messages from Earth Fare, Earth Fare continued to text her in violation of the TCPA. On appeal, she contends that the district court erred in holding that she failed to allege that she made reasonable revocation requests as required by the statute. The district court properly dismissed Epps’ complaint after assessing the totality of the facts and circumstances surrounding Epps’ communications with Earth Fare, including the messages detailed in the parties’ text message log. See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7996 ¶ 64, n.233 (2015). In light of these facts and circumstances, including (1) the availability of a one-word opt-out procedure; (2) Epps’ unexplained failure to use the one-word opt-out; and (3) Earth Fare’s notice to Epps that it did not understand her non-standard messages, we agree with the district court that Epps failed plausibly to allege that she reasonably revoked her consent. Because this determination is dispositive, we do not need to decide whether the district court erred in finding that Epps failed plausibly to allege use of an automatic telephone dialing system.