February 3, 2016, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a Telephone Consumer Protection Act (“TCPA” or “the Act”) claim because the plaintiff-appellant gave prior express consent to be contacted. Shaya Baird, the plaintiff-appellant, used Hawaiian Airlines’ website to purchase airline tickets. To purchase the tickets, the website required Baird to enter a phone number, and she provided her cell phone number. Three weeks later and approximately one month before her flight, Sabre Inc. (“Sabre”), the defendant-appellee, sent Baird a text-message. (Sabre has a contract with Hawaiian Airlines to deliver travel notifications to the airline’s customers.) Sabre’s text message gave Baird the option to reply “yes” to start receiving notifications about her flight. Baird did not respond to the message, and Sabre did not send any additional messages.

Subsequently, Baird filed a TCPA action against Sabre in the United States District Court for the Central District of California. She alleged that Sabre violated the TCPA by sending her the text message, which she characterized as unsolicited. The TCPA makes it unlawful for any person “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any [mobile] telephone number.” See 47 U.S.C.A. § 227(b)(1)(A)(iii). (The district court and the Ninth Circuit acknowledged that text messages count as calls for the purposes of the Act.) Additionally, Baird sought to represent a class of people who had received similar text messages from Sabre.

To defend against Baird’s TCPA claim, Sabre deployed the “prior express consent” affirmative defense. The district court and the Ninth Circuit determined that the case’s procedural posture required them to use the Federal Communications Commission’s (“FCC”) interpretation of prior express consent. The courts concluded that according to the FCC, knowingly releasing one’s phone number counts as prior express consent, unless the person also gives instructions not to be contacted. Neither side disputed that Baird knowingly released her phone number. Additionally, neither side disputed the absence of instructions from Baird not to be contacted. Instead, the disagreement concerned the voluntariness of Baird’s knowing release of her telephone number.

According to Baird, for a knowing release of one’s telephone number to count as prior express consent, the knowing release must be voluntary. Baird contended that her release of her telephone number was not voluntary because the airline’s website required her to provide a telephone number to purchase the plane tickets. The district court, however, disagreed.

According to the district court, Baird’s knowing release of her telephone number “was a voluntary act . . . [because] she was not forced to book a flight on Hawaiian Airlines.” The Ninth Circuit did not comment on Baird’s lack of voluntariness argument. For the Ninth Circuit, it was enough that Baird had knowingly provided her telephone number to the airline. Ultimately, the district court dismissed Baird’s TCPA claim, and the Ninth Circuit affirmed the district court’s decision.

These two decisions are important because they demonstrate that even routine conduct, such as completing a form, can serve as the basis for a successful “prior express consent” affirmative defense against a TCPA claim. Note, however, that the text message at issue in this case appears to have been “purely informational” and therefore not subject to the higher disclosure standards of the FCC’s October 2013 TCPA regulation.

A copy of the Ninth Circuit’s decision is available by clicking here and a copy of the district court’s decision is available by clicking here.

Reporter, Barrett R. H. Young, Washington, D.C., +1 202 626 2928, bryoung@kslaw.com.