In an unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit recently affirmed summary judgment for the defendant in a Telephone Consumer Protection Act (TCPA) case, refusing to entertain the plaintiff’s challenge to a 1992 Federal Communications Commission (FCC) ruling on what constitutes “prior express consent” under the TCPA. Although not precedential, the ruling confirms that consumers agree to be called on mobile numbers they provide to companies with whom they do business.

In Baird v. Sabre, Inc., et al., the plaintiff provided her mobile number to an airline while making a flight reservation. The airline then sent her, through a vendor, a single text message offering a traveler notification service. The text message invited the plaintiff to reply "yes" to receive via text message information concerning her upcoming flight. She did not respond and the defendant did not send any more messages.

The plaintiff then brought a putative class action alleging that the defendant violated the TCPA by using an automatic telephone dialing system to send the text message without her prior express consent. The U.S. District Court for the Central District of California granted the defendant's motion for summary judgment and the Ninth Circuit affirmed.

At issue in the case was a 1992 FCC order stating 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.'' The plaintiff argued that the FCC's interpretation of ''express consent'' was unreasonable and contrary to the TCPA's plain meaning because, in her view, it allowed for implied, rather than express, consent. In granting summary judgment, the District Court determined that the FCC's ruling was dispositive and could not be challenged in the case because the Hobbs Act requires FCC rulings to be challenged through a petition for review in a court of appeals naming the United States as a party. The District Court also rejected the argument that there was no consent because the number was provided directly to the airline, not the vendor who sent the text message. The Ninth Circuit affirmed on the same grounds.

Although Baird is not precedential because it is unpublished, it nonetheless is a significant decision because the Ninth Circuit now has joined a growing number of federal appellate and district courts following the 1992 FCC ruling.

Ballard Spahr’s TCPA Task Force assists clients in navigating the complex and challenging issues that arise under the TCPA. The Task Force, which comprises regulatory attorneys and litigators, provides counsel on TCPA compliance and avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. Task Force members also defend clients against TCPA class or individual actions.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).


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