Murphy v. DCI Biologicals Orlando, LLC

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation797 F.3d 1302
Docket NumberNo. 14–10414.,14–10414.
PartiesJoseph B. MURPHY, an individual, on behalf of himself and all others similarly situated, Plaintiff–Appellant, v. DCI BIOLOGICALS ORLANDO, LLC, a Delaware limited liability company, DCI Biologicals, Inc., a Delaware Foreign For Profit Corporation, Medserv Biologicals, LLC, a Delaware Foreign Limited Liability Company, Defendants–Appellees.
Decision Date20 August 2015

Deepak Gupta, Peter Conti–Brown, Gupta Beck, PLLC, Washington, DC, Edmund A. Normand, Normand Law, PLLC, Orlando, FL, Scott David Owens, Law Office of Scott D. Owens, PA, Hallandale, FL, for PlaintiffAppellant.

David G. Hetzel, Robert Michael Shaw, Holland & Knight, LLP, Boston, MA, Suzanne E. Gilbert, Gennifer Bridges Powell, Holland & Knight, LLP, Orlando, FL, Timothy J. McLaughlin, Shaheen & Gordon, P.A., Concord, NH, for DefendantsAppellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, and JILL PRYOR, Circuit Judges, and MOODY,* District Judge.

Opinion

JILL PRYOR, Circuit Judge:

PlaintiffAppellant Joseph Murphy brought this putative class action against DefendantsAppellees DCI Biologicals Orlando, LLC; DCI Biologicals, Inc.; and Medserv Biologicals, LLC (collectively, DCI), alleging that DCI violated the Telephone Communications Practice Act, 47 U.S.C. § 227 (“TCPA”), by sending Mr. Murphy two text messages. In this appeal, we examine whether Mr. Murphy gave prior express consent under the TCPA to be contacted. After careful consideration of the briefs, and with the benefit of oral argument, we affirm the district court's opinion.

I.

DCI buys and resells blood products through plasma collection centers across the United States. Mr. Murphy was paid for multiple blood plasma donations he made at a collection center during the spring of 2010. Before donating, Mr. Murphy filled out medical release and acknowledgement forms, as well as a “New Donor Information Sheet,” which asked for information required by federal law and for personal information such as his telephone number. Mr. Murphy alleged that DCI, through public ads and privacy policies, represented that blood donor information submitted for record maintenance would be kept confidential.

More than two years later, DCI sent Mr. Murphy two text messages. The first read:

You will receive MMS messages from DCI Biologicals on short code 76000. Reply STOP to 99000 to cancel.

Am. Compl. ¶ 89, Doc. 59. Mr. Murphy did not reply. Approximately 40 minutes later, Mr. Murphy received a second text message:

We NEED U Back $20 Special!!!
DCI Biologicals: DONATE TODAY! GET PAID TODAY! SAVE A LIFE TODAY! “$20 COME BACK SPECIAL”-Come back in and See Us & Get an Extra $5 on your NEXT 4 Donations!
DONATE UP TO 20 MIN FASTER WITH OUR NEWLY UPGRADED MACHINES....

Id.1 The second text message also had an electronic media file attached, which pictured a woman holding cash with the words:

DCI Biologicals
PLASMA The Fluid of LIFE
EARN UP TO $235 A MONTH

Id. ¶ 90; Am. Compl., Ex. A, Doc. 59–1.

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.2

II.

We review the district court's grant of DCI's motion to dismiss for failure to state a claim de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir.2014). A district court may dismiss a complaint for failure to state a claim if an affirmative defense appears on the face of the complaint. Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.1993).

III.

We begin by reviewing the TCPA's applicable section and the FCC's interpretations of it. The TCPA prohibits the use of an automatic telephone dialing system to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).3 The prohibition against auto dialed calls applies to text message calls as well as voice calls. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14115 ¶ 165 (2003) (affirming that the prohibition against automatic telephone dialing in § 227(b)(1) “encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls”). Congress conferred on the FCC the authority to “prescribe regulations to implement” the TCPA. 47 U.S.C. § 227(b)(2) ; see also id. § 201(b) (“The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.”).

Pursuant to its rulemaking authority, the FCC defined “prior express consent” in its initial rulemaking following the TCPA's passage. See 1992 FCC Order, 7 FCC Rcd. at 8769. The FCC stated 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.” Id. at 8769 ¶ 31. It explained that “telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.”Id. Referencing the House Report on the TCPA as support for this interpretation, the FCC noted that when a person provides his or her telephone number, calls to that number are permissible because “the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.” Id. at 8769 ¶ 31 n. 57 (quoting H.R.Rep. No. 102–317, at 13 (1991)).

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 ¶ 11.4

IV.
A.

Having set forth the statutory and regulatory background, we examine whether the district court correctly held that it lacked jurisdiction under the Hobbs Act to review, and was therefore bound by, the 1992 FCC Order's interpretation of prior express consent. DCI argues that under the 1992 FCC Order Mr. Murphy gave his express consent to be contacted by DCI when he included his cell phone number on the New Donor Information Sheet before giving blood. In response, Mr. Murphy argues that the 1992 FCC Order does not control. According to Mr. Murphy, the term “prior express consent” must be given its ordinary meaning, under which, he argues, providing a cell phone number on the new donor form constituted only implied consent. We hold that the 1992 FCC Order's interpretation of prior express consent controls; thus, Mr. Murphy gave his prior express consent to be contacted by DCI.

The Communications Act, which the TCPA amended, provides that any “proceeding to enjoin, set aside, annul, or suspend any order of the Commission” must be brought under the Hobbs Act. 47 U.S.C. § 402(a). The Hobbs Act provides the federal courts of appeals with “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity” of FCC orders. 28 U.S.C. § 2342(1). District courts may not determine the validity of FCC orders, including by refusing to enforce an FCC interpretation, because [d]eeming agency action invalid or ineffective is precisely the sort of review the Hobbs Act delegates to the courts of appeals in cases challenging final FCC...

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