Federal Court Dismisses TCPA Case, Further Defines "Prior Express Consent"

A U.S. District Court last week dismissed a class action suit claiming violations of the TCPA for a single informational text message sent to a cell phone. While the case did not involve debt collection matters, the judge used previous ARM cases in his reasoning and focused on what constitutes “prior express consent” under the TCPA for both calls and text messaging.

In the case Baird v. Sabre, Inc., U.S. District Judge Stephen Wilson in the Central District of California said the actions taken fell under the consumer’s prior express consent to contact her via cell phone. He granted the defendant’s motion to dismiss.

Plaintiff Baird booked flights for herself and her family on the Hawaiian Airlines website. A section of the website entitled “Contact Information,” provided spaces to enter a number for a mobile phone, home phone, or work phone, stating, “At least one phone number is required.” Baird entered her cellphone number. Three weeks later, and about a month before her scheduled departure, defendant Sabre sent a text message to Baird’s cellphone. Sabre contracts with Hawaiian Airlines to provide traveler notification services to passengers. The text message invited Baird to reply “yes” to receive flight notification services. Baird did not respond and Sabre sent her no more messages.

Baird then filed suit against Sabre claiming that the company violated the TCPA by sending her the unsolicited text message. She also sought class action status for her suit.

When Sabre moved for summary judgment and dismissal, citing Baird’s consent in providing her cell number, Baird argued that she did not voluntarily provide her cellphone number. Rather, it was a requirement for booking the flights online.

The Court, rather than focusing on the text message aspect of the case, took on the issue of consent being used to allow the use of autodialers to contact cell phone numbers.

Judge Wilson used the reasoning of the FCC in a 1992 rulemaking action which attempted to define “prior express consent” under the TCPA (the law itself was passed the previous year). The FCC wrote at the time, “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.”

Likewise, he discussed the back-and-forth action that occurred in 2008 concerning the definition of prior express consent between the FCC’s Declaratory Ruling published at the beginning of that year and the contradictory – and ultimately vacated – decision in Leckler v. CashCall, all of which involved debt collection calls. Wilson noted that this case did not involve debt collection, so his reasoning was based more on the 1992 rulemaking.

Wilson ruled that Baird had, in fact, given consent for Hawaii Airlines or its affiliates to contact her using her cell number, and that the single text message sent to Baird’s cellphone fell within the scope of her “prior express consent.” As such, the defendant was entitled to summary judgment on the TCPA claim.

This case is very similar to another case decided just weeks ago in a District court, Murphy v. DCI Biologicals Orlando, LLC. Like Baird, the Murphy case did not involve debt collection and used the 1992 TCPA rulemaking language as the basis of the decision on prior express consent.

But unlike Baird, the judge in Murphy specifically addressed the case of Mais v. Gulf Coast Collection Bureau, Inc. She rejected the reasoning in Mais that found that district courts had the authority to review federal regulatory orders.  The Mais decision, also coming out of a district court in Florida, has caused great confusion regarding express consent under the TCPA.