On February 3, the United States Court of Appeals for the Ninth Circuit issued a decision affirming summary judgment in favor of the defendant on a Telephone Consumer Protection Act (TCPA) claim in Baird v. Sabre, Inc., —F.App’x,—, 2016 WL 424778 (9th Cir. Feb. 3, 2016). The short opinion was designated by the panel as unpublished. Nonetheless, because of the relative paucity of published circuit court decisions on highly specific TCPA issues, district courts throughout the country rely on these “unpublished opinions.” Baird, however, is unremarkable.
In 1991, 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.” Based on that determination, the Ninth Circuit decided the district court correctly found that the plaintiff expressly consented to the text message in question when she knowingly released her phone number while making a flight reservation and did not provide contrary instructions indicating that she did not wish to be reached at that number.
The decision closely tracks—but does not cite—another Ninth Circuit decision issued a few months ago that reached the same result on this issue, Roberts v. Paypal, Inc., 621 F. App’x 478, 479 (9th Cir. 2015). Nor did the Ninth Circuit cite the recent Eleventh Circuit published opinion on this issue in Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305-06 (11th Cir. 2015). Murphy, the only published circuit court opinion on the issue, reached the same result as Baird.
The Ninth Circuit also did not mention that the FCC issued an order in 2012 (effective in 2013) that altered the requisite form of prior express consent for “all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines,” specifying that prior consent to be contacted must be “written” and setting forth disclosures that must be made when obtaining prior consent. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2012 FCC Order”), 27 FCC Rcd. 1830, 1831 § 2, 1838 § 20 (2012); see 47 C.F.R. § 64.1200(f)(8). The complaint in Baird was filed in February 2013, eight months before the rule change took effect.
In Roberts the Ninth Circuit noted that although the FCC changed its approach to “prior express consent” in recent years, see, e.g., In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1838 (Feb. 15, 2012), those changes occurred subsequent to the text message at issue in this case and do not apply retroactively. The Eleventh Circuit included a similar clarification in Murphy.
The clarification’s omission in Baird likely led several legal news sources, including blogs, to write about the case and give it credit for more than it is: an opinion that plows no new ground on a rule that was amended on the exact point at issue in the case in 2013. In other words: move along, there’s nothing to see here.