In a recent decision, United States District Judge Stephen V. Wilson granted summary judgment to defendant Sabre Inc. (“Sabre”) on the basis that the plaintiff provided her “prior express consent” to receive text messages simply by providing her mobile number on a contact form. Baird v. Sabre Inc., Case No. CV 13-999 (C.D. Cal. Jan. 28, 2014). The plaintiff had booked a flight for her and her family on Hawaiian Airlines’ website, the contact section of which required that the user enter at least one of his/her home, work or mobile numbers. The plaintiff provided her mobile phone number where requested in this section. About a month before her scheduled departure, and three weeks after booking, Sabre, who provides travel notification services for Hawaiian Airlines, sent a text message to the plaintiff’s mobile phone that invited her to reply “yes” to receive flight notification services. She did not respond and Sabre sent her no further messages. The plaintiff then brought this action alleging that Sabre violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., (“TCPA”) by sending her the unsolicited text message described above.

In its motion for summary judgment, Sabre argued as an affirmative defense that the plaintiff’s voluntary act of providing her mobile number to Hawaiian Airlines constituted the prior express consent required by the TCPA, and the court granted Sabre summary judgment on this basis.

The court’s reasoning is in line with TCPA cases that allow creditors to reach out to debtors who have provided their mobile numbers via auto-dialed “robocalls.” Both this case and creditor-debtor line of cases rely on a 1992 Federal Communications Commission (“FCC”) rulemaking action which explained 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 & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 ¶ 31 (1992) (“1992 FCC Order”) (citing H.R. Rep. No. 102-317, at 13 (1991) (“[T]he called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.”))[1] (emphasis added). Despite the fact that the court admits that the FCC’s interpretation of “prior express consent” in the 1992 FCC Order “drains the term “express” in the TCPA of its meaning”, the court holds that an individual who ““knowingly releases” [his/her] cellphone number . . . . [gives] permission to be called at that number by an automated dialing machine.” Thus, in this decision, the court extended this reasoning beyond the creditor-debtor realm to all transactional calls.[2]

KEY TAKEAWAYS:

• Although this decision further supports the position that “prior express consent” is obtained for purposes of transactional text messages when the consumer merely provides his/her mobile number, this does not change the requirements for obtaining “prior written express consent” for marketing text messages. Especially in light of new FCC requirements for advertising and telemarketing text messages (and all other advertising and telemarketing calls), you must ensure that you obtain the consumer’s clear, written permission prior to sending such consumer any marketing text messages. Further guidance on the new FCC amendments to its TCPA rule is available in our prior blog post on the topic.
• Additionally, despite the FCC’s rulemaking authority, its interpretation of “prior express consent” has been questioned as recently as May 2013. In Mais v. Gulf Cost Collection Bureau, a debt collection case, U.S. District Judge Robert N. Scola rejected the defendant’s argument that the plaintiff’s provision of a mobile number constituted “express” consent on the basis that the FCC’s interpretation was inconsistent with the plain meaning of “express.” Case No. 11-61936-Civ (S.D. Fla. May 8, 2013) (granting summary judgment for the plaintiff; currently pending appeal in the Eleventh Circuit). Likewise, there was a similar result in the Northern District of Illinois in late 2012 where summary judgment was granted in favor of the plaintiff because: (i) even though the plaintiff had consented to receiving calls on her mobile phone number she did not provide her prior express consent to receive autodialed calls; and (ii) the case did not specifically fall under the creditor-debtor exception set forth in the FCC’s 2008 Order. Thrasher-Lyon v. CCS Commercial, LLC, No. 11-cv-4473, 2012 WL 3835089 (N.D. Ill. Sept. 4, 2012) (currently pending appeal in the Seventh Circuit).

In other words, Federal District Courts have recently taken inconsistent positions in interpreting “prior express consent” even in connection with transactional calls. Given the number of TCPA cases brought against often well-intentioned defendants, the conservative approach would be to obtain the user’s specific consent to receive text messages even in the transactional context (e.g., by employing language similar to “I agree to receive text messages regarding [this transaction] to the mobile number provided” on contact forms).