In an unreported ruling, the U.S. Court of Appeals for the Ninth Circuit recently affirmed summary judgment for the defendant in a putative class action for alleged violation of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA").
The Court held that the named plaintiff expressly consented to the text message in question when she provided her cell phone number to a third party contracting with the defendant while using the third party's services.
A copy of the opinion is available here: Link to Opinion
The named plaintiff booked flights online for herself and her family on an airline website. A section of the website entitled "Contact Information" provided spaces to enter various phone numbers, noting that at least one was required. The plaintiff entered her cell phone number.
The defendant contracts with airlines to provide traveler notification services to passengers. Three weeks after the named plaintiff made her reservation with the airline, and about a month before her scheduled departure, the defendant sent a text message to the consumer's cell phone. The text message invited the named plaintiff to reply "yes" to receive flight notification services. The named plaintiff did not respond and the defendant sent her no more messages.
The named plaintiff brought this action, alleging that the defendant violated the TCPA by sending her the unsolicited text message. She sought to represent a class of people who received similar text messages from the defendant.
As you may recall, the TCPA restricts calls and text messages made using an automatic dialing system or an artificial or prerecorded voice absent "prior express consent" from the called party. 47 U.S.C. § 227(b)(1)(A).
The Federal Communications Commission ("FCC"), having authority to prescribe regulations to implement specific parts of the TCPA, determined 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 & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992) ("1992 Order"). The Ninth Circuit noted that the defendant's assertion that the named plaintiff consented to receive the text message is an affirmative defense to liability under the TCPA.
The district court relied upon the 1992 FCC Order, stating that "[i]f a call is otherwise subject to the prohibitions [against using an autodialer, and other rules targeting telemarketing], 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." 1992 FCC Order ¶ 31.
The district court reasoned that the FCC appeared to have intended its 1992 Order to provide a definition of "prior express consent" in Paragraph 31, which states, in its entirety:
31. We emphasize that under the prohibitions set forth in [47 U.S.C.] § 227(b)(1) and in [47 C.F.R.]§§ 64.1200(a)-(d) of our rules, only calls placed by automatic telephone dialing systems or using an artificial or prerecorded voice are prohibited. If a call is otherwise subject to the prohibitions of § 64.1200, 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. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached. However, if a caller's number is "captured" by a Caller ID or an ANI device without notice to the residential telephone subscriber, the caller cannot be considered to have given an invitation or permission to receive autodialer or prerecorded voice message calls. Therefore, calls may be placed to "captured" numbers only if such calls fall under the existing exemptions to the restrictions on autodialer and prerecorded message calls.
2008 FCC Order ¶ 31 (footnote citing H.R. Rep. No. 102-317 omitted).
The district court noted that, although "Paragraph 31 of the 1992 FCC Order is not a model of clarity," the statement that "telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached" begs the question of whether merely providing a cellphone number demonstrates that the number is "one at which the called party wishes to be reached" by an automated telephone dialing system, instead of a number at which the called party wishes to be reached by a human being.
Nevertheless, the district court held that Paragraph 7 of the 1992 FCC Order showed that the FCC intended to provide a definition of the term "prior express consent," and that definition governed the district court's analysis of whether the plaintiff could prevail on her claim that the defendant's text message to her cell phone violated the TCPA. The district court held that under the FCC's definition, the plaintiff "knowingly release[d]" her cellphone number to the airline 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.
The named plaintiff appealed. The Ninth Circuit's ruling affirming the lower court's judgment in favor of the defendant was twofold:
First, the Ninth Circuit held that the named plaintiff's argument that providing her phone number did not constitute "prior express consent" "may not be challenged in the context of this appeal" because her lawsuit was not brought pursuant to the Hobbs Act.
The Ninth Circuit noted that the Hobbs Act provides the court of appeals with exclusive jurisdiction to determine the validity of all final orders of the FCC. A party may invoke this appellate jurisdiction "only by filing a petition for review of the FCC's final order in a court of appeals naming the United States as a party." US W. Commc'ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1120 (9th Cir. 1999). Because the named plaintiff did not bring suit pursuant to the Hobbs Act, the Court held that the validity of the FCC's interpretation of "prior express consent" must be presumed valid.
Second, the Ninth Circuit held that when the named plaintiff released her phone number to the airline while making a flight reservation, she expressly consented to the text message in question. The Court noted that she did not provided the airline any "instructions to the contrary" indicating that she did not "wish to be reached" at that number. See 1992 Order, 7 FCC Rcd. at 8769.
Accordingly, the Ninth Circuit affirmed the district court's order granting of summary judgment in favor of the defendant.
Ralph T. Wutscher
Maurice Wutscher LLP
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