The United States District Court for the Central District of California recently ruled in Shaya Baird v. Sabre Inc., that a consumer who voluntarily provides a phone number in the process of completing a transaction thereby gives express consent for purposes of the consent defense to the Telephone Consumer Protection Act (“TCPA”).  NO.2:13-cv-00999-SVW-JRP, 2014 WL 5511039 (C.D. Cal. January 28, 2014).

Background

Shaya Baird (“Plaintiff”) purchased flights to Hawaii for her family through the Hawaiian Airlines website. Id. at *1.  As part of the transaction, the website prompted her to enter at least one phone number.  Plaintiff entered her cell phone number.  Id.  Approximately one month prior to her scheduled flight, Plaintiff received a text message to her cell phone from Defendant Sabre Inc. inviting Plaintiff to respond “yes” to receive flight notification services.  Id.  Sabre contracts with Hawaiian Airlines to provide traveler notification services.  Id.  Plaintiff did not respond to the text message and therefore, did not receive any further communications or any notifications from Sabre.  Id.

Plaintiff filed suit against Sabre alleging that it was a violation of the TCPA to send her the text message inviting her to receive additional traveler notification services.  Id.  Sabre moved for summary judgment on the ground that Plaintiff consented to receive its text message by providing her cell phone number during the purchase of her airline tickets.  Id.

Opinion

Because the TCPA does not define “prior express consent” the District Court in Baird interpreted and clarified several FCC Orders in making its ruling on what may constitute prior express consent under the TCPA.  Id. at *2-4.   The 1992 FCC Order provides that:

[C]alls placed by automatic telephone dialing systems or using an artificial or pre-recorded voice are prohibited.  [Except 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.  Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.

Id. at *5.  Without overturning the 1992 Order, in 2003, the FCC issued an order that revised several TCPA rules and regulations.  In that order, the FCC, affirmed that under the TCPA, “it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number.”  Id. at *4.  After receiving petitions for clarification from creditors and collection companies, in 2008 the FCC issued another order “unambiguously stating that calls made to cell phone numbers provided in connection with an existing debt are permissible as calls made with the prior written consent of the called party.”   Id.  at *4.  Accordingly, after the 2008 FCC Order, the question of whether providing a cell phone number outside the creditor/debtor context constituted prior express consent under the TCPA remained open for interpretation.

The District Court granted Sabre’s motion for summary judgment on the TCPA claim.  Tracking the language of the 1992 FCC Order, it ruled that it was undisputed that Plaintiff “’knowingly released’ her cell phone number to Hawaiian Airlines when she booked her tickets.” Id. at *6.  The court found the fact that Sabre, a third party contractor for Hawaiian Airlines, not Hawaiian Airlines, contacted Plaintiff inapposite because “no reasonable consumer could believe that consenting to be contacted by an airline company about a scheduled fight requires that all communications be made by direct employees of the airline.”  Id.  The court also found Plaintiff’s argument that she did not consent because the website required her to provide at least one phone number during the transaction unpersuasive because “she was not forced to book a flight on Hawaiian Airlines.”  Id.    Thus, Plaintiff’s voluntary act of providing her cell phone number during the ticket purchase constituted express consent to be contacted on her cell phone about flight related matters.  Id.

Implications

Other district courts have followed suit, arguably expanding the FCC’s interpretation of prior express consent even farther.  In Kolinek v. Walgreens Co., No. 13 C 4806, 2014 WL 518174 (N.D. Ill. Feb. 10, 2014), the court dismissed the plaintiff’s TCPA claim because the plaintiff admitted that he voluntarily provided his phone number to Walgreens when he filled a prescription ten years earlier.  Id. at *1.  The court found that under the FCC’s interpretation of the consent defense, this constituted prior express consent.  Id. at *3.   This liberal interpretation of prior express consent expands the protection for companies against TCPA claims where consumers have previously provided a phone number to the company by diluting the TCPA’s requirement that consent be “express.”