The Ninth Circuit Court of Appeals affirmed dismissal of a Telephone Consumer Protection Act class action, agreeing with a California federal court judge that the defendant could not be liable under the statute because the plaintiff provided express consent to be contacted.

Shaya Baird booked flights online for herself and her family on the Hawaiian Airlines website. During the process, Baird was presented with spaces to enter a number for a mobile phone, home phone, or work phone with the statement, "At least one phone number is required." Baird entered her cell phone number.

Three weeks later and about one month before her departure, Baird received a text message from Sabre, Inc., a travel technology company that contracted with Hawaiian, offering to provide flight notification services if she replied "yes." Baird's response to the text: a putative class action complaint filed in California federal court alleging that Sabre violated the TCPA by sending her an unsolicited text message.

Sabre moved for summary judgment. The defendant argued that Baird consented to receive the text message by voluntarily providing her cell phone number during the online reservation process, even though the number was provided to Hawaiian Airlines and not to Sabre.

The district court agreed and Baird appealed to the Ninth Circuit.

Affirming summary judgment in favor of the defendant, the court relied upon the Federal Communications Commission's 1992 Order prescribing regulations for the TCPA. The agency 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."

With the validity of the FCC's interpretation of "prior express consent" not at issue, the Ninth Circuit said the 1992 Order made the appeal easy.

"Baird expressly consented to the text message in question when she provided Hawaiian Airlines with her cellphone number," the federal appellate panel wrote. "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."

The court also distinguished Satterfield v. Simon & Schuster, Inc., where a panel of the Ninth Circuit concluded that a person's consent to receive calls from one business does not constitute consent to receive calls from a different business. Although a similar situation existed in the Sabre case—Baird provided her phone number to Hawaiian Airlines, but was contacted by Sabre—a key difference existed.

"Sabre is a vendor for Hawaiian Airlines and contacted Baird regarding her reservation," the court wrote in a footnote, and the record in Satterfieldrevealed no direct contractual relationship between the entity that contacted the plaintiff and Simon & Schuster. "The district court made no distinction between Sabre and Hawaiian Airlines because of the relationship between the companies, and Baird does not make any argument based on this distinction."

To read the memorandum in Baird v. Sabre, Inc., click here.

Why it matters: The Ninth Circuit affirmed the district court's commonsense approach to providing consent and recognized that as a vendor of Hawaiian Airlines, Sabre was able to rely on the consent provided to the airline as prior express consent for the calls it made in connection with the plaintiff's flight.