In Ranwick v. Texas Gila, LLC, 2014 WL 3891663 (D.Minn. 2014), Judge Kyle refused to follow the Mais decision out of Florida.
Ranwick seeks to avoid the application of these Rulings by arguing they are erroneous and not binding on the Court. To the contrary, the Hobbs Act reserves to the courts of appeals the “exclusive jurisdiction to determine the validity of FCC orders.” Nack v. Walburg, 715 F.3d 680, 685 (8th Cir.2013). He argues the Hobbs Act does not apply to the 2008 Ruling and cites Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp.2d 1226, 1237 (S.D.Fla.2013), in support. Mais held the Hobbs Act does not apply to private TCPA suits for damages, so it disregarded the FCC’s 2008 Ruling and applied its own interpretation of “prior express consent.” Id. (“[T]he Plaintiff does not seek to collaterally attack an FCC order in any respect, and this action’s central aim is not to invalidate any such order or to enjoin action that is the outcome of the agency’s order. Rather the purpose of this lawsuit is to obtain damages for violations of the TCPA.”) (internal quotation and citation omitted). However, Mais is contrary to the Eighth Circuit’s holding in Nack. There, the recipient of a fax advertisement sued the sender under the TCPA and the district court granted summary judgment, concluding the regulation the plaintiff sued under did not apply. 715 F.3d at 682–83. On appeal, the Circuit deferred to the FCC’s interpretation of its regulation and clarified that the Hobbs Act applied to the defendant/appellee’s attack on the validity of the regulation, even though “the question of [its] validity ar[ose] in a suit between two private parties” for money damages. Id. at 686. Given this directive from the Circuit, the Court declines to follow Mais and will defer to the FCC’s interpretation of “prior express consent” rather than opine on its validity. See Sartori v. Susan Little & Assocs., P.A., No. 13–2162, 2014 WL 3302588, at *4–5 (10th Cir. Jul. 9, 2014) (applying 2008 Ruling and concluding plaintiff consented to calls where he provided his phone number for his account with the creditor business); Osorio v. State Farm Bank, 746 F.3d 1242, 1252 (11th Cir.2014) (applying FCC’s interpretation, although parties did not challenge it); Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268–69 (3d Cir.2013) (applying 1992 Ruling). Under the FCC’s interpretation of “prior express consent” articulated in these Rulings, the Court concludes Ranwick consented to be called using a prerecorded voice by the DOR and, therefore, by Texas Gila as its agent. The thrust of the FCC’s Rulings is that a person need not specifically consent to be contacted using an autodialer or artificial or prerecorded voice. Rather, a person who knowingly provides his telephone number to a creditor in connection with a debt is agreeing to allow the creditor to contact him regarding his debt, regardless of the means. That is what Ranwick did here..