In Singer v. Las Vegas Ath. Clubs, No. 2:17-cv-01115-GMN-VCF, 2019 U.S. Dist. LEXIS 48838 (D. Nev. Mar. 25, 2019), Judge Singer found the Second Circuit’s Reyes decision incompatible with Ninth Circuit precedent.
Preliminarily, the Court is bound by the Ninth Circuit’s ruling in Van Patten. To the extent Reyes may serve as persuasive authority, the Court finds it cannot be reconciled with Van Patten, ACA Int’l, or the 2015 FCC Order. First, the 2015 FCC Order states that “callers may not abridge a consumer’s right to revoke consent using any reasonable method.” 30 FCC Rcd. at 7996 (“[C]onsumers must be able to respond to an unwanted call- using either a reasonable oral method or a reasonable method in writing-to prevent future calls.”). The D.C. Circuit subsequently endorsed the “[FCC’s] approach to revocation of consent, under which a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller.” ACA Int’l, 885 F.3d at 692. As to whether the Reyes Court properly applied common-law understandings of consent revocation, this contention is immaterial. The 2015 FCC Order explicitly sets forth a statutory, rather than common law, right of revocation. See 2015 FCC Order, 30 FCC Rcd. at 7995 (“We do not rely on common law to interpret the TCPA to include a right of revocation. We simply note our conclusion is consistent with the common law right of revocation and do not attempt to substitute common law for statutory law.”). Last, LVAC asserts that Reyes is in harmony with ACA Int’l because the D.C. Circuit noted that the FCC has yet to address “revocation rules mutually adopted by contracting parties,” or “parties’ ability to agree upon revocation procedures.” ACA Int’l, 885 F.3d at 710. This argument, even if credited, has no bearing on this case as [*22] the Membership Agreement is without any revocation mechanism. (See Membership Agreement, Ex. 1-B to LVAC’s MSJ, ECF No. 24-1); see also Ammons v. Ally Fin., Inc., 326 F. Supp. 3d 578, 600 (M.D. Tenn. 2018) (“The parties here did not contractually agree to a revocation mechanism. In the absence of such an agreement, ACA International supports the FCC’s objection to the very type of unilateral imposition of irrevocable consent that was sanctioned in Reyes and is advocated by [the defendant] here.”); Rodriguez v. Premier Bankcard, LLC, No. 3:16-cv-2541, 2018 WL 4184742, at *11 (N.D. Ohio Aug. 31, 2018) (“[T]he FCC’s clarification does not help Premier in this case, because here, there is also no ‘particular revocation procedure’ set by ‘mutual agreement’ between the parties.”). In sum, the Court declines LVAC’s invitation to follow the Second Circuit’s holding in Reyes.