By providing a cell phone number during the process of booking a flight, a plaintiff gave consent to be contacted at that number, a California federal court judge has ruled in dismissing a TCPA suit.
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 reply “yes” to receive flight notification services. 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 court agreed.
U.S. District Court Judge Stephen V. Wilson found that the single text message sent to Baird’s cell phone fell within the scope of her prior express consent. The court cited an 1992 FCC Order, which stated 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.” A myriad of federal district courts, mainly in California, have relied upon the language in that same 1992 ruling “to conclude that plaintiffs who provided a business with their telephone number and then received a text message from the business had no claim under the Act,” Judge Wilson said.
Judge Wilson acknowledged that the 1992 Order “is not a model of clarity” and that its language “drains the term ‘express’ in the TCPA of its meaning. Despite the weakness in this reasoning, however, the FCC appears to have intended its 1992 Order to provide a definition of ‘prior express consent’ in the TCPA.”
Therefore, “Under the FCC’s definition, it is undisputed that Baird ‘knowingly’ release[d] her cellphone number to Hawaiian Airlines when she booked her tickets, and by doing so gave permission to be called at that number by an automated dialing machine,” the court concluded. In finding that the plaintiff had given prior express consent for the text, Judge Wilson also noted the voluntary nature of her decision to provide a cellular number: “Baird’s act of providing her cellphone number was a voluntary act; she was not forced to book a flight on Hawaiian Airlines.”
To read the summary judgment order in Baird v. Sabre, Inc., click here.
Why it matters: Despite Judge Wilson’s misgivings with the 1992 FCC Order, he relied upon this interpretation to find that the plaintiff consented to receive the text message by providing her cellphone number during the online booking process. The significance is that Sabre was able to rely on consent provided to Hawaiian airlines as prior express consent for calls made by Sabre in connection with that Hawaiian flight, thus allowing a common-sense reading of consent to apply.