Shaya Baird v. Sabre, Inc. ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 03 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
SHAYA BAIRD, on behalf of herself and No. 14-55293
on behalf of all others similarly situated,
D.C. No. 2:13-cv-00999-SVW-
Plaintiff - Appellant, JPR
v.
MEMORANDUM*
SABRE, INC.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 1, 2016**
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
Shaya Baird appeals the district court’s grant of summary judgment in favor
of Sabre, Inc. (“Sabre”) regarding her claim under the Telephone Consumer
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Protection Act (“TCPA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
The TCPA restricts certain calls1 using an automatic dialing system2 or an
artificial or prerecorded voice absent “prior express consent.” 47 U.S.C. §
227(b)(1)(A). The Federal Communications Commission (“FCC”), having
authority to prescribe regulations to implement the TCPA, see 47 U.S.C. §
227(b)(2), 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”).
1. The FCC’s interpretation of “prior express consent” may not be challenged
in the context of this appeal. The Hobbs Act provides the court of appeals with
“exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to
determine the validity of . . . all final orders of the Federal Communications
1
The TCPA’s prohibition “applies to text messages . . . as well as voice
calls.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 19 FCC Rcd. 15927, 15934 (Aug. 12, 2004).
2
Sabre argues that the messaging system used to send Baird the text message
is not an automatic dialing system. We decline to reach this issue, because we
affirm the district court on the grounds that Baird consented to the text message.
-2-
Commission.” 28 U.S.C. § 2342. A party may invoke this 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). This suit was not brought pursuant to the Hobbs Act.
As a result, the validity of the FCC’s interpretation of “prior express consent” must
be presumed valid. See US W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n.2
(9th Cir. 2002) (“Properly promulgated FCC regulations currently in effect must be
presumed valid for the purposes of this appeal.”). Accordingly, Baird’s argument
that providing her phone number did not constitute prior express consent is
foreclosed in light of the 1992 Order.
2. Baird expressly consented to the text message in question when she provided
Hawaiian Airlines with her cellphone number. Baird knowingly released her
phone number to Hawaiian Airlines while making a flight reservation. She did not
provide 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. Therefore,
-3-
according to the 1992 Order, Baird provided “prior express consent” to receive the
text message in question.3
AFFIRMED.
3
In Satterfield v. Simon & Schuster, Inc., we concluded that a person’s
consent to receive calls from one business does not constitute consent to receive
calls from a different business. 569 F.3d 946, 955 (9th Cir. 2009). A similar
situation exists here—Baird provided her phone number to Hawaiian Airlines, but
was contacted by Sabre. However, unlike in Satterfield, Sabre is a vendor for
Hawaiian Airlines and contacted Baird regarding her reservation. Cf. id. (“[T]he
record shows no direct contractual relationship between Nextones and Simon &
Schuster.”). The district court made no distinction between Sabre and Hawaiian
Airlines because of the relationship between the companies, and Baird does not
make any argument based on this distinction.
-4-