In Baird v. Sabre Inc., 2014 WL 320205 (C.D.Cal. 2014), Judge Wilson distinguished Satterfield and held that the Plaintiff, who provided her cellular telephone number to book a flight on Hawaiian Airlines, consented to receive texte messages from Sabre, who contracts with Hawaiian Airlines to provide traveler notification services to passengers. The text message invited Baird to reply “yes” to receive flight notification services. Baird did not respond and Sabre sent her no more messages. Baird 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. She seeks to represent a class of people who received similar text messages from Sabre.
Baird argues that at most, the act of providing a telephone number on a form provided by a company during a business transaction conveys “implied consent” to be called, but not the “express consent” required by 47 U.S.C. § 227(b)(1)(A). Baird also argues that the issue of consent is a question of fact, not law, and points to evidence that a person booking a flight on the Hawaiian Airlines website cannot complete the transaction without providing a telephone number, and would not naturally assume that simply by doing so, she was expressing consent to be called at that number by an automatic telephone dialing system. ¶ . . . Baird argues that the analysis of consent in the 1992 FCC Order reflects an unreasonable interpretation of the plain language of the TCPA that the Ninth Circuit has rejected. See Satterfield, 569 F.3d at 955 (“Express consent is ‘[c]onsent that is clearly and unmistakably stated.’ ”) (quoting Black’s Law Dictionary 323 (8th ed.2004)). In Satterfield, however, the Ninth Circuit had no occasion to consider the validity of the FCC’s interpretation of “express consent.” Instead, the plaintiff in Satterfield had consented to receiving promotional materials from a company (Nextones) and its affiliates and brands. Id. The plaintiff’s cellphone number was subsequently obtained by an unaffiliated entity, the Simon & Schuster publishing company, which sent her a promotional text message about a book having no relation to Nextones. Id. at 949. The Ninth Circuit concluded that the plaintiff’s “consent to receive promotional material by Nextones and its affiliates and brands cannot be read as consenting to the receipt of Simon & Schuster’s promotional material.” Id. at 955. While the court mentioned the dictionary definition of “express consent” in support of its conclusion that a person’s consent to receive calls from one business does not constitute consent to receive calls from a different business, the issue of whether the mere act of providing a cellphone number constitutes “express consent” did not arise in Satterfield. See id. at 949 (plaintiff expressly consented to receiving text messages from Nextones affiliates by affirmatively checking a box marked “Yes!” on a form). Therefore, Satterfield did not reject the FCC’s determination that express consent can be inferred from the consumer’s act of providing a cellphone number. ¶ Nevertheless, Paragraph 7 of the 1992 FCC Order shows that the FCC intended to provide a definition of the term “prior express consent.” That definition must govern this Court’s analysis of whether Baird can prevail on her claim that Sabre’s text message to her cellphone violated the TCPA. See 28 U.S.C. § 2342(1); U.S. West, 224 F.3d at 1053–55 (deferring to FCC’s interpretation of Telecommunications Act of 1996 despite “serious doubts about the FCC’s analysis”). Under 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. See 1992 FCC Order ¶¶ 7, 31. ¶ D. Baird Consented to Receive the Text Message from Sabre. ¶ Although Sabre is a different company from Hawaiian Airlines, there is no genuine factual dispute over the fact that Hawaiian Airlines contracted with Sabre to provide flight notification services to its passengers. (Dkt. 29–4: Newell Decl. ¶ 4.) FN4 Nor is there a genuine factual dispute that the single message sent to Baird invited her to sign up to receive messages related to her upcoming flight on Hawaiian Airlines. ( Id. ¶¶ 5–6.) Thus, this case is unlike Satterfield, in which the plaintiff consented to receive messages from a business and its affiliates, but not from wholly unrelated enterprises. Cf. Satterfield, 569 F.3d at 955 (“[T]he record shows no direct contractual relationship between Nextones and Simon & Schuster.”). No reasonable consumer could believe that consenting to be contacted by an airline company about a scheduled flight requires that all communications be made by direct employees of the airline, but never by any contractors performing services for the airline. Indeed, Baird does not make this argument. Instead, her argument is that she felt compelled to provide a telephone number to complete her reservation, and did not consent to receive text messages on that number. (Dkt 37–4: Baird Decl. ¶¶ 7–10, 14–15.) Nevertheless, Baird’s act of providing her cellphone number was a voluntary act; she was not forced to book a flight on Hawaiian Airlines. Cf. Saunders v. NCO Financial Systems, Inc., 910 F.Supp.2d. 464, 465–67 (E.D.N.Y.2012) (where PACER system required plaintiff to provide a contact telephone number to obtain an account, plaintiff’s act was still voluntary and constituted express consent to be contacted). ¶ Defendant’s evidence establishes that Baird provided her cellphone number to Hawaiian Airlines voluntarily. Under the FCC’s interpretation of the TCPA, Baird consented to be contacted on her cellphone about flight-related matters. Hawaiian Airlines then used its vendor Sabre to offer to provide Baird with flight information on her cellphone. The single text message sent to Baird’s cellphone fell within the scope of her “prior express consent.” Defendant is therefore entitled to summary judgment on the TCPA claim.