9th Cir. Affirms MSJ in Favor of Caller in TCPA Action; Declines to Reach the ATDS Issue

In Baird v. Sabre, Inc., 2016 WL 424778, at *1 (C.A.9 (Cal.),2016), the Court of Appeals for the Ninth Circuit confirmed that giving your cell number without contrary instructions constitutes consent to be called on it.

The TCPA restricts certain calls¹ using an automatic dialing system² or an artificial or prerecorded voice absent “prior express consent.” 47 U.S.C. § 227(b)(1)(A). The Federal Communications Commission (“FCC”), having authority to prescribe regulations to implement the TCPA, see 47 U.S.C. § 227(b)(2), determined 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.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992) (“1992 Order”).  The FCC’s interpretation of “prior express consent” may not be challenged in the context of this appeal. The Hobbs Act provides the court of appeals with “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of … all final orders of the Federal Communications Commission .” 28 U.S.C. § 2342. A party may invoke this jurisdiction “only by filing a petition for review of the FCC’s final order in a court of appeals naming the United States as a party.” US W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1120 (9th Cir.1999). This suit was not brought pursuant to the Hobbs Act. As a result, the validity of the FCC’s interpretation of “prior express consent” must be presumed valid. See U.S. W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n. 2 (9th Cir.2002) (“Properly promulgated FCC regulations currently in effect must be presumed valid for the purposes of this appeal.”). Accordingly, Baird’s argument that providing her phone number did not constitute prior express consent is foreclosed in light of the 1992 Order.   Baird expressly consented to the text message in question when she provided Hawaiian Airlines with her cellphone number. Baird knowingly released her phone number to Hawaiian Airlines while making a flight reservation. She did not provide any “instructions to the contrary” indicating that she did not “wish [ ] to be reached” at that number. See 1992 Order, 7 FCC Rcd. at 8769. Therefore, according to the 1992 Order, Baird provided “prior express consent” to receive the text message in question.