In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. 2013), Judge Honeywell found that a blood bank did not violate the TCPA by sending text messages to a prior blood donor who had provided his cellular telephone number in connection with giving blood. Murphy was paid for donating his blood through a blood plasma center in Orlando, DCI Biologicals Orlando, on several occasions between March 1, 2010 and June 14, 2010. He provided certain blood donor information, including his telephone number, which Murphy maintains he was required to provide. Murphy argues that he never gave his express consent or otherwise gave any authority to Defendants to upload his health and biological information, such as his name, telephone number, the fact that he was a paid donor, or his HIV testing status, to databases accessible by third parties such as the Text Messagers or to have text advertisement messages delivered to his cellular phone.
Nevertheless, Defendants contend that Murphy’s claims fail because he admits to giving his cellular telephone number to DCI Biologicals Orlando via a “New Donor Information Sheet,” see Am. Compl. ¶ 66, Ex. A, which they argue is an act of “express consent” under the TCPA. . . . Here, Defendants point out that the face of Murphy’s Amended Complaint clearly contains the allegation that he voluntarily provided DCI Biologicals Orlando with his cellular telephone number when filling out the New Donor Information Sheet. Am. Compl. ¶ 66; Mot. to Dismiss at 6. Defendants contend that this action constitutes his “express consent” to receive calls from an automatic telephone dialing system under the TCPA. Id. Murphy denies that providing his number on the New Donor Information Sheet in this manner constituted his “express consent” to receive autodialed calls.. . . Murphy’s argument that he provided the Defendants with “instructions to the contrary” has no merit. Resp. at 17. Murphy inaccurately states in his Response that his number “was provided in a document with instructions that explicitly stated the information was obtained for ‘being processed as a new donor.’ “ Id.; Am. Compl., Ex. A. On the contrary, the New Donor Information Sheet merely stated: “There are a few questions we would like for you to answer prior to you being processed as a new donor.” New Donor Information Sheet (emphasis added). Therefore, since Murphy did not give Defendants any “instructions to the contrary,” his argument here fails. ¶ Murphy also argues that the FCC’s definition of “express consent” really constitutes implied consent, and therefore should not be applied here, citing numerous cases which he avers “reject[ ] … attempts to imply express consent from a contact number.” Resp. at 10. However, as Defendants pointed out and the Court noted at the motion hearing, some of Murphy’s cases do not stand for his stated proposition and, while others stand for the proposition, they provide no helpful analysis and are not binding precedent. Other cases cited by Murphy are inapplicable to this matter because they are in the context of a creditor-debtor relationship, a relationship which has been specifically addressed by a subsequent FCC ruling.FN6 See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 23 F.C.C.R. 559, 2008 WL 65485 (Jan. 4, 2008) (“2008 FCC Declaratory Ruling”). Additionally, Murphy’s argument that this 2008 FCC Declaratory Ruling as well as other FCC orders that were promulgated after the 1992 FCC Order somehow curtailed the general definition of “express consent” from that 1992 Order is without merit. ¶ The remaining cases Murphy cites reference the Hobbs Act in some way. See 28 U.S.C. § 2342. An analysis of the applicability of the Hobbs Act to this matter is essential to determining whether the Court is even permitted to consider Murphy’s argument that the FCC inaccurately interpreted “express consent” under the TCPA in its 1992 FCC Order and whether the 1992 FCC Order should be given deference. . . . ¶ . . . Mais interpreted the Hobbs Act’s jurisdictional provision starting with its statutory language. Id. Section 402(a) of the Hobbs Act provides that “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the Commission … shall be brought as pro-vided by and in the manner prescribed in chapter 158 of title 28.” See 47 U.S.C. § 402(a). The Mais court interpreted this section to mean that any action that is not a proceeding “to enjoin, set aside, annul, or sus-pend” an FCC order necessarily falls outside of the jurisdictional provision’s reach. Mais, 2013 WL 1899616 at *6. Accordingly, the court found that the plaintiff had not filed any proceeding “to enjoin, set aside, annul, or suspend any order of the Commission,” but rather, sought damages for debt collection calls that violated the TCPA, and thus concluded that the central purpose of the plaintiff’s lawsuit was not “to enjoin, set aside, annul, or suspend” an FCC order. Id. Rather, the purpose of the lawsuit, from the court’s perspective, was to obtain damages for violations of the TCPA. Mais, 2013 WL 1899616 at *8. Therefore, the court held that the Hobbs Act’s jurisdictional pro-vision did not apply. Id. Noting conflict with other opinions, the court granted the defendant’s motion to certify an interlocutory appeal to the Eleventh Circuit on this issue under 28 U.S.C. § 1292(b). Id. at *17, *23–24. ¶ Mais has been severely criticized by Chavez v. Advantage Grp., Case No. 12–CV–02819–REB–MEH, 2013 WL 4011006 (D.Colo. Aug. 5, 2013), which viewed Mais as an outlier case. The Chavez court noted that Mais was the only federal district court to conclude that district courts have jurisdiction to review FCC rulings. Id. This Court agrees with the Chavez court and joins those courts that have found that the 2008 FCC Ruling is binding on the district courts and not subject to review except by the federal courts of appeals. See, i.e., Sacco v. Bank of Am., N .A., Case No. 5:12–CV–00006–RLV–DCK, 2012 WL 6566681, *9 (W.D.N.C. Dec. 17, 2012) (noting that, “[r]egardless of whether this [2008 FCC Declaratory Ruling’s] interpretation of the TCPA is entitled to Chevron deference, … this Court lacks jurisdiction to review its validity [under the Hobbs Act], or to determine the validity of … all final orders of the Federal Communications Commission….” “[This FCC ruling … is a ‘final order’ for the purposes of [the Hobbs Act] because it was the agency’s final decision interpreting the ‘prior express consent’ provision of the TCPA and determines legal rights and obligations.”). ¶ . . . As noted above, this Court is bound to apply the FCC’s definition of “express consent” under the 1992 FCC Order pursuant to the Hobbs Act. The Court interprets the rule to mean that this consent is to receive auto-dialed calls. The whole purpose of the provision of the TCPA at issue is to prohibit calls using an automatic telephone dialing system unless such calls are made for emergency purposes or with the prior express consent of the called party. The statute does not prohibit ordinary calls. It only restricts autodialed calls. The FCC’s 1992 Order did not define “express consent” in a vacuum; on the contrary, the Order defined “express consent” in the context of the TCPA and the TCPA speaks specifically to autodialed calls. ¶ Here, Murphy asks this Court to find that providing his number to the Defendants on the New Donor Information Sheet did not constitute “express consent” to be autodialed under the TCPA. The effect of this would be to “set aside, annul, or suspend” the FCC’s 1992 Order defining “express consent.” The Hobbs Act expressly reserved to the federal courts of appeals jurisdiction to effectuate any of those out-comes. Accordingly, this Court finds that the FCC’s 1992 Order is binding here and, under the Hobbs Act, is not subject to review except by the federal courts of appeals. The 1992 FCC Order is clear that providing a number constitutes express consent to be auto-dialed under the TCPA.