11th Cir. Rejects Hobbs Act Challenge to FCC’s “Express Consent” TCPA Rule

In Murphy v. DCI Biologicals Orlando, LLC, 2015 WL 4940800, at *1 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit affirmed the FCC’s rulings on what constitutes prior express consent in a TCPA/debt collection case.

Mr. Murphy alleged that DCI stored donor record information on a commercial database it operated and that it provided the donor information to third party text message marketing/advertising platforms. Mr. Murphy further alleged that DCI used the third parties’ automatic dialing equipment to send out mass automated text advertising messages to donors such as himself.  Mr. Murphy claimed, inter alia, that sending the text messages violated the TCPA’s prohibition on using an auto dialer device to dial telephone numbers without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A). DCI moved to dismiss the lawsuit on the ground that by providing his cell phone number to DCI on the New Donor Information Sheet (as Mr. Murphy alleged in his complaint), he gave prior express consent to be contacted at that number—an affirmative defense to a claim under the TCPA. In a thorough and thoughtful opinion granting DCI’s motion to dismiss, the district court concluded that it lacked jurisdiction under the Hobbs Act to consider Mr. Murphy’s argument that the Federal Communications Commission (“FCC”) incorrectly interpreted “prior express consent” in its initial rulemaking following the TCPA’s passage. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“1992 FCC Order”), 7 FCC Rcd. 8752, 8769 (1992). This appeal, challenging only the dismissal of the auto dialer counts under the TCPA, followed.

The Court of Appeals affirmed the FCC’s 2002, 2008 rulings on prior express consent.

In subsequent explications of TCPA regulations, the FCC has referred with approval to the 1992 FCC Order’s interpretation of prior express consent. In 2008, the FCC issued a declaratory judgment that declined to find an exception to the prior express consent doctrine for auto dialed calls to wireless numbers made by debt collectors. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2008 FCC Ruling”), 23 FCC Rcd. 559 (2008). The FCC concluded that providing a cell phone number to a creditor—as part of a credit application, for example—“reasonably evidences prior express consent … to be contacted at that number regarding the debt.” Id. at 564 ¶ 9. Citing the 1992 FCC Order, the FCC repeated its previous interpretation of prior express consent: “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.” Id. Although the 2008 FCC Ruling dealt specifically with debt collection calls, the FCC “reiterate[d] that the plain language of [§ ] 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party,” and that “this prohibition applies regardless of the content of the call.” Id. at 565 ¶ 11. . . .Having determined that the district court correctly refused to entertain arguments regarding the validity of the 1992 FCC Order, we turn to whether DCI’s actions violated the TCPA under any FCC order. Mr. Murphy’s argument that prior express consent must be given its plain language meaning fails because it requires rejection of the FCC’s interpretation of prior express consent in FCC orders. Absent a direct appeal to review the 1992 FCC Order’s interpretation of prior express consent, we are bound to follow it. See CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir.2010); cf. Mais, 768 F.3d at 1121 (holding the 2008 FCC Ruling had the force of law).6 Mr. Murphy’s complaint alleged that he provided his cell phone number on DCI’s New Donor Information Sheet, which he completed before giving blood plasma. Mr. Murphy gave his prior express consent to receive auto dialed calls or text messages, such as the two text messages he received, by providing his cell phone number, which was not required under federal law for the donation of blood products. The form neither requested a cell phone number specifically nor indicated that providing a cell phone number was a prerequisite to donating blood plasma. Under § 227(b)(1)(A) and the FCC’s interpretation of prior express consent, Mr. Murphy’s provision of his cell phone number constituted his express consent to be contacted by DCI at that number.   We are unpersuaded by Mr. Murphy’s argument that the 1992 FCC Order does not apply to the facts of this case because it concerned only residential landlines. As discussed above, the 1992 FCC Order’s interpretation of prior express consent applied to § 227(b)(1)(A) generally. Cellular telephones are expressly included in § 227(b)(1)(A), and the 1992 FCC Order’s discussion of prior express consent gave no indication that cellular telephones should be excluded. See 1992 FCC Order, 7 FCC Rcd. at 8768–69 ¶¶ 29–31. And, since 1992, the FCC has reiterated and consistently applied its interpretation of prior express consent in the context of cell phone calls and text messages. See 2012 FCC Order, 27 FCC Rcd. at 1832 ¶ 4 (section 227(b)(1)(A), which “prohibits certain categories of autodialed calls, absent an emergency or the ‘prior express consent’ of the consumer[,] … encompasses both voice and text calls, including short message service (SMS) calls.”); 2008 FCC Ruling, 23 FCC Rcd. at 564 ¶ 9 (“provi[ding] [ ] a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.”). We therefore hold that the 1992 FCC Order’s interpretation of prior express consent applies to Mr. Murphy’s claims.