Court Rules That Prior Express Consent Under the TCPA Does Not Require Explicit Statement That an Autodialer May Be Used
On January 28, 2014, the Court in Baird v. Sabre, Inc.held that “prior express consent” under the Telephone Consumer Protection Act (TCPA) is evidenced by the voluntary provision of a cellphone number to a company. The Baird court squarely rejected a common argument by TCPA plaintiffs’ lawyers that providing a cell phone number, unaccompanied by specific language that the consumer grants express consent to be contacted by an autodialer, does not rise to the standard for consent required by the TCPA.
Background
Plaintiff Baird, booked flights online for herself on the Hawaiian Airlines website. A section of the website titled “Contact Information” required that she include a telephone number, whether it be a home, mobile, or work number. Baird entered her cellphone number. Shortly thereafter, Defendant Sabre, on behalf of Hawaiian Airlines, sent a text message to Baird’s cellphone, which provided traveler notification services to passengers. The text message invited Baird to reply “yes” to receive these services. Baird did not respond. Sabre sent no further messages. Subsequently, Baird filed a putative class action asserting that Sabre violated the TCPA by sending her an unsolicited text message.
Sabre moved for summary judgment arguing that Baird provided prior express consent required by the TCPA to be contacted on her cellphone using an autodialier when she provided that number during the course of purchasing her ticket online. Baird objected that she did not provide her cellphone number voluntarily, and, instead was required to do so in order to book her flight. Baird also argued that she was not “informed or aware that Hawaiian Airlines would consider her act of supplying her cellphone number to constitute consent to receive text messages.”
The Court, after discussing in detail Orders issued by the Federal Communication Commission in 1992 and 2008 interpreting the “consent” requirement, held that “[u]nder the FCC’s definition, it is undisputed that Baird ‘knowingly release[d]’ her cellphone number to Hawaiian Airlines when she booked her tickets, and by doing so gave permission to be called at that number by an automated dialing machine.”
Practical Implications
Plaintiffs have repeatedly argued that the TCPA requires explicit language informing consumers that when they provide a cell phone number, that provision constitutes express consent to receive calls made by an autodialer. The first and last time this argument was accepted was in Mais v. Gulf Coast Collection Bureau, Inc., a 2013 decision from the Southern District of Florida, raising widespread concerns that FCC interpretation of consent would be eroded by court decisions. The Baird decision followed the FCC interpretation and should substantially resolve concerns that Mais could represent a bellweather of change in the law. Indeed, Baird goes far in rendering Mais an outlier decision that, at most, applies only to its specific facts.
About Troutman Sanders
Troutman Sanders’ Financial Services Litigation practice is an accomplished and experienced leader in providing litigation and regulatory advice to a broad spectrum of public and private institutions, including in individual actions, mass actions, and class actions. The practice is comprised of a dedicated group of trial and regulatory lawyers who focus on resolving the array of issues that confront financial institutions, including under the FCRA. Its lawyers have years of hands-on successful experience in all areas of the trial process, coupled with in-depth banking industry and regulatory knowledge. Troutman Sanders’ State Attorneys General practice group also has successfully represented companies responding to lawsuits filed by state and federal regulators.
© TROUTMAN SANDERS LLP. ADVERTISING MATERIAL. These materials are to inform you of developments that may affect your business and are not to be considered legal advice, nor do they create a lawyer-client relationship. Information on previous case results does not guarantee a similar future result. Follow Troutman Sanders on Twitter.