                           NOT FOR PUBLICATION                             FILED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.

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