In Munro v. King Broadcasting Co., 2013 WL 6185233 (W.D.Wash. 2013), Judge Robart held that a consumer can revoke previously provided consent to receive text messages under the TCPA.
As King points out, the TCPA is silent on whether a consumer may revoke previously-granted consent to receive text messages. (Mot. at 4.) It is clear under the statute that damages cannot be awarded if the caller has the “prior express consent of the called party.” See 47 U.S.C. § 227(b)(1)(A). But the TCPA says nothing about whether, if the called party revokes consent, it is lawful for the caller to ignore that revocation and continue to call as if the consent never even occurred. See 47 U.S.C. § 227(b). ¶ Nevertheless, the weight of authority suggests that consent may be revoked under the TCPA and that if messages continue after consent is revoked, those messages violate the TCPA. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268–272 (3d Cir.2013); Beal v. Wyndham Vacation Resorts, Inc., ––– F.Supp. ––––, 2013 WL 3870282, at *16 (W.D. Wis. June 20, 2013); Adamcik v. Credit Control Servs., Inc., 832 F.Supp.2d 744, 749 (W.D.Tex.2011); Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703, at *11–12 (W.D.N.Y. Sept. 15, 2011); Brook v. Suncoast Schs., FCU, No. 8:12–cv–01428–T–33MA P, 2012 WL 6059199, at *4 (M.D.Fla. Dec. 6, 2012); Sengenberger v. Credit Control Servs., Inc., No. 09 C 2796, 2010 WL 1791270, at *4 (N.D.Ill. May 5, 2010). Although the Ninth Circuit has not addressed this question, at least one district court in the Ninth Circuit has. Gutierrez v. Barclays Grp., No. 10cv1012 (BGS), 2011 WL 579238, at *4 (S.D. Cal. Feb 9, 2011) ¶ The courts that have reached this conclusion have done so for several key reasons. First, the term “consent” must be read to incorporate its common law meaning absent Congressional indication to the contrary, and at common law consent may be revoked. See, e .g., Gager, 727 F.3d at 270–71 (citing Neder v. United States, 527 U.S. 1, 21 (1999) (“[W]here Congress uses terms that have accumulated settled meaning under … the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.”)); see id. at 271 (citing RESTATEMENT (SECOND) OF TORTS § 892A, cmt. I (1979)). Second, allowing consumers to revoke consent is “in line with the purpose of the TCPA”; the TCPA is a remedial statute passed to protect consumers from unwanted automated telephone calls and messages and should be construed in accordance with that purpose. Id. at 271 (citing Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 997 (3d Cir.2011)). Finally, this interpretation hews carefully to the FCC’s decision on this issue in In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Soundbite Commc’n, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012). In that ruling, the FCC stated that “consumer consent to receive … messages is not unlimited,” and that a consumer may “fully revoke” prior consent by transmitting an opt-out request to the sending party. Id. at 15397 ¶¶ 8, 11. In Gager, the court held that the Soundbite decision served as additional authority supporting its conclusion that consent can be revoked under the TCPA .FN1 Gager, 727 F.3d at 271–72. All of these reasons are persuasive, and the court incorporates the analysis in Gager and the cases that follow it herein.