ACA Industry Advancement Support Helps Secure Victory in 9th Circuit TCPA Case

The Ninth Circuit ruled that a consumer provided “prior express consent” required by the TCPA when she voluntarily gave her cellphone number on a contact form, and such consent extended to a third-party independent contractor.

ACA International applauds the 3-0 decision the Ninth Circuit Court of Appeals entered Wednesday in the case of Baird v. Sabre, Inc., et al., 14-55293 (9th Cir., Feb. 3, 2016).  The central issue on appeal was whether a consumer provided “prior express consent” to receive an autodialed text message from an airline’s third-party independent contractor under the Telephone Consumer Protection Act when the consumer knowingly gave her cellphone number to the airline.  ACA assisted in successfully defeating the consumer’s appeal by providing amicus brief support in the case, leading to a significant TCPA ruling positively impacting ACA members.    

The Ninth Circuit affirmed the district court’s decision to toss out the consumer’s class action TCPA complaint, holding that the text message the consumer received was not actionable under the TCPA because the consumer voluntarily provided her phone number. 

As ACA reported previously, in Baird, the consumer had booked a flight for her and her family on Hawaiian Airlines’ website; the booking process required her to enter at least one home, work or mobile number.  The consumer provided her cellphone number in this section. About a month before her scheduled departure, and three weeks after booking, Sabre, Hawaiian Airlines’ third-party independent contractor who provides travel notification services, sent a text message to the consumer’s cellphone that invited her to reply “yes” to receive flight notification services.  She did not respond, and Sabre sent her no further messages.  The consumer then brought a class action alleging that Sabre violated the TCPA by sending her an unsolicited text message. 

The district court rejected the consumer’s claim and dismissed the class action with prejudice.  In doing so, the district court held that the consumer effectively provided “prior express consent” for such texts when she shared her contact information with the Hawaiian Airlines and such consent extended to its third-party independent contractor, Sabre.

On appeal, the Ninth Circuit affirmed the district court’s decision and found that the consumer “knowingly released her phone number” and “did not provide any ’instructions to the contrary.’”  As such, the appellate court concluded that the consumer “expressly consented” to receive the text message when she provided her cellphone number.

The appellate court also noted that the consumer’s consent to receive calls from one business constituted consent to receive calls from a different business because of the contractual relationship between the companies.

ACA International filed an amicus (“friend of the court”) brief with the Ninth Circuit in the Baird appeal on October 10, 2014  to provide insight to the court with respect to how the TCPA is interpreted and applied by the collection industry and why the TCPA must be consistently and predictably applied.  ACA is confident this important decision will markedly reduce TCPA risk for anyone making non-telemarketing calls or texts to cellphones using an automated dialer, for which “prior express consent” is the principal affirmative defense. 

The Ninth Circuit’s decision in Baird is a significant win for the credit and collection industry because it holds that a consumer’s release of his or her telephone number to a party in effect amounts to “express” consent required under the TCPA to be contacted by that party, unless the consumer states otherwise. While the appellate court’s decision ultimately turned on its interpretation of what constituted consent –the consumer’s provision of her phone number to the airline – its extension of that consent to the airline’s third-party independent contractor provides an important defense potentially available to independent contractors facing TCPA litigation – like third-party debt collectors who receive their consent to contact consumers from the original creditor who contracted with the consumer.  

ACA’s efforts to proactively support the credit and collection industry are part of the association’s Industry Advancement Program and made possible with funding from ACA’s Industry Advancement Fund.

If you missed any of the articles previously published in ACA Daily that provided more detailed information about Industry Advancement Program supported cases, such as the Baird case, you can always see the archived articles on the Industry Advancement Program website. Watch for updates when decisions are issued in these cases and learn about new cases supported by the Industry Advancement Program in the future by reading ACA Daily, logging onto the Industry Advancement Program website, and viewing the Industry Advancement Program Judicial Advocacy Report throughout the year.