Ninth Circuit Rules Prior Consent Fatal to TCPA Suit

Yesterday the Ninth Circuit Court of Appeals affirmed a lower court dismissal of a putative Telephone Consumer Protection Act (“TCPA”) class action ruling that the plaintiff had provided “prior express consent” to receive the text messages in question.

The case is Shaya Baird v. Sabre, Inc. et.al (No. 14-55293, Feb. 3, 2016 9^th Circuit Court of Appeals). The memorandum opinion can be found here. The ruling in the case was noted as “NOT FOR PUBLICATON”, meaning the case is not eligible to be cited as precedent except as provided by 9th Cir. Rule 36-3. ACA International had filed an Amicus Curiae brief in the matter. The Court of Appeals Panel unanimously concluded that the case was suitable for decision without oral arguments.

The facts of the case were outlined in the lower court’s original opinion granting Summary Judgment in favor of the Defendants.

Plaintiff Shaya Baird booked flights online for herself and her family on the Hawaiian Airlines website. A section of the website entitled “Contact Information,” provided spaces to enter a number for a mobile phone, home phone, or work phone, stating, “At least one phone number is required.” Baird entered her cellphone number. Three weeks later, and about a month before her scheduled departure, defendant Sabre sent a text message to Baird’s cellphone. Sabre contracts with Hawaiian Airlines to provide traveler notification services to passengers. The text message invited Baird to reply “yes” to receive flight notification services. Baird did not respond and Sabre sent her no more messages.

Baird then brought this action, alleging that Sabre violated the TCPA by sending her the unsolicited text message. She sought to represent a class of people who received similar text messages from Sabre.

The appellate panel discussed the Federal Communications Commission (“FCC”), having authority to prescribe regulations to implement the TCPA. The court then cited the FCC’s 1991 ruling: In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 7 FCC Rcd.8752, 8769 (Oct. 16, 1992) (“1992 Order”).

In that Order the FCC determined that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

In light of the above, the court decided: “Baird expressly consented to the text message in question when she provided Hawaiian Airlines with her cellphone number. Baird knowingly released her phone number to Hawaiian Airlines while making a flight reservation. She did not provide any “instructions to the contrary” indicating that she did not “wish to be reached” at that number. Therefore, according to the 1992 Order, Baird provided “prior express consent” to receive the text message in question.”

Editor’s Note: Sabre had also argued that the messaging system used to send Baird the text message was not an “automatic dialing system”. The court declined to reach this issue, because they affirmed the district court on the grounds that Baird consented to the text message.

insideARM Perspective

Three things stand out from this case.

First, the unpublished opinion has minimal precedential value.

Second, the court’s common sense views on “prior express consent” are favorable to the ARM industry.

Third, it is somewhat surprising that the opinion says doesn’t mention the July, 2015 FCC   TCPA Omnibus Declaratory Ruling and Order. (See here for the July 11, 2015 insideARM story on this.) There wasn’t even a footnote recognizing that matter and the subsequent appeal of that Order.