The Administrative Orders Review Act (aka the Hobbs Act) provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry. On January 28, 2014, the United States District Court for the Central District of California held that “prior express consent” under the Telephone Consumer Protection Act (TCPA) exists when a cell phone number is voluntarily provided to a company. The Court rejected the standard argument by TCPA plaintiffs’ lawyers that there must be a disclosure that the number will be autodialed in order for the provision of the number to be “prior express consent” under the TCPA. The Court’s reliance on the Hobbs Act reinforces the need to use all the tools in your “TCPA tool box” when representing defendants in TCPA cases.
In Baird v. Sabre, Inc. Baird booked flights online and provided her cellphone number in a required section of the form entitled “Contact Information.” Defendant Sabre, on behalf of the airline, sent a text message to Baird’s cellphone, asking whether she wanted to receive traveler notification services. Baird did not reply. Baird filed a putative class action, asserting that Sabre violated the TCPA by sending her an unsolicited text message.
Sabre moved for summary judgment, arguing that Baird consented to receive the text by providing her cell phone number. Sabre relied on the definition of “prior express consent” (“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 a 1992 FCC Order. Baird claimed she did not consent because she was not “informed or aware that [the airline] would consider her act of supplying her cellphone number to constitute consent to receive text messages.”
Although the Court appeared to believe that providing a cell phone number to a business was not “priorexpress consent” under the TCPA, it held that the Hobbs Act required the application of the definition of “prior express consent” in the 1992 Order. It thus found that “[u]nder the FCC’s definition, it is undisputed that Baird ‘knowingly release[d]’ her cell phone number . . . when she booked her tickets, and by doing so gave permission to be called at that number by an automated dialing machine.”
Baird provides a useful lesson in using all of the “tools” at your disposal to defeat TCPA claims. The Hobbs Act can be used to prevent plaintiffs from collaterally attacking the substance of FCC rules that they have not been timely challenged. Sabre used the Hobbs Act to win on the consent issue. However, the defendant in Mais v. Gulf Coast Collection Bureau, Inc., a 2013 decision from the Southern District of Florida (on appeal to the 11th Circuit), lost on the same consent issue even though it also relied on the Hobbs Act. The main difference between the two cases appears to be how the courts in the respective circuits interpret the scope of the Hobbs Act in determining whether a lawsuit is seeking to determine the validity of a final order of the FCC. Until the United States Supreme Court addresses the scope of the phase “to determine the validity of” in the Hobbs Act, it is absolutely critical to know how your circuit treats this issue before developing your strategy to defeat TCPA claims.