Court: District Court, C.D. California; January 27, 2014; Federal District Court
Plaintiff Shaya Baird booked flights through the Hawaiian Airlines website, where she was required to provide a phone number. She entered her cellphone number, and approximately three weeks later, received an unsolicited text from Sabre, a contractor for Hawaiian Airlines, inviting her to opt into flight notifications. Baird did not respond and subsequently filed a lawsuit against Sabre, alleging a violation of the Telephone Consumer Protection Act (TCPA) for sending the unsolicited message. She aims to represent others who received similar messages.
Sabre's defense rests on the claim that Baird consented to receive the text by providing her cellphone number during the booking process, arguing this constituted "express consent" under the TCPA. Baird counters that she felt obligated to provide her number to complete the booking and was not informed that this would result in consent for text messages.
The legal standard for summary judgment requires the moving party to show no genuine issue of material fact exists. If the moving party meets this burden, the nonmoving party must then present specific facts indicating a genuine issue for trial. A mere scintilla of evidence is insufficient; only disputes that could affect the case's outcome under the law can prevent summary judgment from being granted.
Baird's provision of her cellphone number during the flight booking process is central to Sabre's defense against the TCPA liability claim, asserting that this constitutes consent for future text messaging. Sabre bears the burden of proof to show that Baird's action equates to 'prior express consent' under the TCPA, as established in case law. Sabre argues that sharing a phone number inherently implies consent for contact, relying on FCC regulations and past court rulings that support this interpretation. In contrast, Baird contends that providing her number reflects only 'implied consent' and that the issue of consent is factual, noting that customers might not assume that sharing their number during a transaction implies consent for automated calls. The FCC's 1992 ruling suggests that knowingly providing a phone number indicates permission to be contacted, a stance supported by various court cases. However, Baird challenges this interpretation, referencing the Ninth Circuit's position that 'express consent' must be unequivocally stated, which has not been definitively addressed in previous rulings related to the FCC's interpretation.
The Ninth Circuit determined that a plaintiff's consent to receive promotional materials from Nextones and its affiliates does not extend to materials from Simon & Schuster. The court referenced the definition of 'express consent' to emphasize that consenting to communications from one business does not imply consent from another. The case of Satterfield did not address whether merely providing a cellphone number constitutes 'express consent.' In contrast, a critique by Baird referenced Judge Illston’s analysis in Leckler v. CashCall, Inc. concerning the TCPA and autodialed calls. The 2008 FCC ruling clarified that providing a cellphone number to a creditor in relation to an existing debt implies 'prior express consent' to be contacted about that debt. Judge Illston initially found this interpretation inconsistent with the TCPA but later vacated her opinion, stating federal appellate courts have exclusive jurisdiction to review FCC orders. Consequently, the court in Leckler could not dispute the FCC’s definition of 'prior express consent' when a cellphone number is provided to creditors concerning existing debts.
In Self v. BellSouth Mobility, Inc. and CE Design, Ltd. v. Prism Business Media, the courts addressed the issue of 'express consent' under the Telephone Consumer Protection Act (TCPA). The Ninth Circuit's reference to the dictionary definition of 'express consent' in Satterfield does not empower it to reject FCC rules during an appeal of a TCPA claim, as per U.S. West Communications, Inc. v. Hamilton. The Hobbs Act requires a petition for review of FCC orders to challenge their validity. The 2008 FCC Order was crucial in cases involving creditor calls but does not apply here, as Baird did not provide her cellphone number to Sabre in relation to a debt. The relevant inquiry is whether the 1992 FCC Order established that merely providing a cellphone number to a business implies consent for autodialed calls under the TCPA.
The 1992 FCC Order indicated that individuals who knowingly give their phone numbers effectively invite calls to that number unless stated otherwise. This interpretation was supported by a House report suggesting that providing a number indicates a request for contact. However, Judge Illston in Leckler I critiqued this reasoning, arguing it undermines the term 'express' in the TCPA. Despite these criticisms, the FCC intended the 1992 Order to define 'prior express consent' for the TCPA.
Definitions for 'prior express consent' and 'established business relationship' are detailed in paragraphs 29-35 of the legal document. Paragraphs 29 and 30 summarize commentator opinions, while paragraphs 32-35 define 'business relationship.' The 'prior express consent' definition is found in Paragraph 31, which clarifies that under 47 U.S.C. 227(b)(1) and 47 C.F.R. 64.1200(a)(d), only calls made using automatic telephone dialing systems or artificial/prerecorded voices are prohibited. Individuals who knowingly provide their phone numbers have given implicit consent to be called unless otherwise specified. However, if a number is obtained without notifying the subscriber, the caller cannot assume consent for autodialed or prerecorded calls.
This contrasts with the 2008 FCC Order, which explicitly permitted calls to cellphone numbers provided in relation to existing debts as being made with 'prior express consent.' The 1992 FCC Order's language raises questions about whether providing a cellphone number constitutes consent for automated calls. The FCC's intended definition of 'prior express consent' is crucial for analyzing whether Baird's claim against Sabre for a text message violation of the TCPA holds. Baird voluntarily provided her cellphone number to Hawaiian Airlines when booking tickets, thus granting permission for calls to that number via automated systems.
While Sabre is distinct from Hawaiian Airlines, it is noted that Hawaiian Airlines contracted Sabre for flight notification services. Baird received a message inviting her to sign up for notifications about her flight, differentiating this case from Satterfield, where consent was limited to messages from a specific business and its affiliates. No direct contractual relationship between Nextones and Simon & Schuster is identified. Baird's argument centers on feeling compelled to provide her number for reservation completion, asserting she did not consent to receive text messages.
Baird voluntarily provided her cellphone number to Hawaiian Airlines to book a flight, which constituted express consent for contact regarding flight-related matters under the FCC's interpretation of the TCPA. Hawaiian Airlines, using its vendor Sabre, sent Baird a single text message that fell within the bounds of her consent, justifying the defendant's entitlement to summary judgment on the TCPA claim. The plaintiff’s California Unfair Competition claim, based on alleged TCPA violations, also fails for the same reasons. Sabre contends the text message did not constitute an 'advertisement' under California Business and Professions Code 17538.41, as it promoted a service not offered for sale and included an option to opt out of further messages. Baird did not counter this argument, leading to Sabre's entitlement to summary judgment on that claim as well. The court ruled in favor of Sabre on all claims in Baird's Second Amended Complaint, which was dismissed with prejudice, and awarded costs to Sabre as the prevailing party. Additional arguments regarding Hawaiian Airlines' privacy policy and the nature of the text message were deemed unnecessary to address, given the decisive nature of the consent defense. Objections to Mr. Newell's declaration were overruled, affirming his competence as a Sabre employee to testify about its services for Hawaiian Airlines.
