TCPA Class Action Dismissed Because Consumer Gave Prior Express Consent

Federal judge found single text message not actionable and dismissed the case because the consumer provided her express consent to be contacted on her cellphone number when she gave the number as contact information while making a flight reservation.

In a Jan. 28, 2014, decision, the U.S. District Court for the Central District of California found that under the Federal Communications Commission’s interpretation of the Telephone Consumer Protection Action, a consumer gives permission or “prior express consent” to be called or contacted on her cellphone number when a consumer knowingly and voluntarily provides that number as part of the process of booking airline tickets.

In the case, Baird v. Sabre Inc., et al., the consumer asserted that she and a class were entitled to statutory damages, fees and costs because the single informational text message she received from the airline’s vendor asking her if she wanted to receive flight notification services about her upcoming flight that she booked online allegedly violated the TCPA.

The consumer claimed that she did not know that when she supplied her cellphone number as contact information she was consenting to receive text messages. The consumer also alleged that she did not voluntarily provide her cellphone number but, instead, was compelled to in order to purchase her flight.

Citing a 1992 FCC order defining the term “prior express consent,” which states “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 judge concluded that the consumer “’knowingly release[d]’ her cellphone number to Hawaiian Airlines when she booked her tickets, and by doing so gave permission to be called that number . . .”

The court also found that the consumer voluntarily provided her cellphone number because she was not forced to purchase her tickets on any particular airline. Accordingly, the court ruled that the consumer consented to be contacted on her cellphone number and, thus, she gave “prior express consent” to receive the single text message at issue in the consumer’s failed TCPA class action lawsuit.

Source: ACA