Middle District of Florida: Providing Cell Phone Number Constitutes Express Consent to Be Autodialed Under TCPA

In Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-CV-1459-ORL, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013), a class action brought under the Telephone Consumer Protection Act ("TCPA"), the Middle District of Florida held that the plaintiff failed to state a claim because he had admittedly provided his cell phone number to the defendants, an act constituting "express consent" to be autodialed. The plaintiff in Murphy alleged that he had provided his cell phone number to the defendants, three affiliated companies involved in the collection and distribution of blood plasma, in connection with his donor paperwork. The defendants allegedly sent text messages to the plaintiff and other donors using autodialers. The plaintiff filed a putative class action against the defendants arguing, among other things, that these text messages violated the TCPA's prohibition on autodialing of cell phones without the called party's prior express consent. The defendants filed a motion to dismiss arguing that the plaintiff's autodialer count failed because the plaintiff admitted to giving the defendants his cell phone number. Section 227(b) of the TCPA prohibits the placement of non-emergency text messages to cell phones using an automatic telephone dialing system without the "prior express consent" of the text message recipient. In 1992, the FCC issued an order stating that "any telephone subscriber who releases his or her telephone number has, in effect, given prior express consent to be called by the entity to which the number was released." Dismissing the plaintiff's autodialer claim, the court held that the plaintiff's admission of providing his cell phone number to the defendants constituted "prior express consent" under the FCC order. The court rejected the plaintiff's argument that the FCC order did not explicitly address express consent to be autodialed, noting that the 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." The court also rejected the plaintiff's suggestion that the court had jurisdiction to review the FCC order. The Hobbs Act provides that federal courts of appeal have exclusive jurisdiction to "enjoin, set aside, annul, or suspend" FCC orders. The Southern District of Florida had held in Mais v. Gulf Coast Collection Bureau, Inc., No. 11-61936-CIV, 2013 WL 1899616 (S .D. Fla. May 8, 2013), that the Hobbs Act did not prohibit courts from reviewing FCC orders in the context of proceedings whose central purpose was not to "enjoin, set aside, annul, or suspend" an FCC order. However, the majority of courts have held that the Hobbs Act entirely prevents a district court from reviewing an FCC order, regardless of the nature of the proceeding. Rejecting Mais, the Murphy court joined the majority of courts in holding that it lacked jurisdiction to review the FCC's order. The court also dismissed the plaintiff's TCPA solicitation claim. Finally, the court dismissed the plaintiff's state law claims, declining to exercise jurisdiction over them after the having dismissed the plaintiff's federal claims. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Posted in: Florida, TCPA
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