In Murphy v. DCI Biologicals Orlando LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), the Eleventh Circuit Court of Appeals affirmed a district court's dismissal of a proposed class action under the Telephone Consumer Protection Act, holding that the plaintiff consented to receive text messages when he provided his cell phone number on a donor information form.
Under the TCPA, generally a business may not use an automatic telephone dialing system (ATDS), which includes systems with the capacity after modification to place calls or send texts automatically, to place calls to cell phones with non-telemarketing messages without having the called party's prior express consent. Under current law, telemarketing messages require prior express written consent. Even though the plaintiff alleged that the text was telemarketing, the Court analyzed consent under the "prior express consent" standard because the text was sent prior to imposition of the current "prior express written consent" standard.
The Court reasoned that under both the TCPA and the Federal Communication Commission's interpretation of prior express consent, the plaintiff's provision of his cell phone number "constituted his express consent to be contacted by [the defendant] at that number." The plasma donor form that the plaintiff filled out in 2010 requested personal information from the donor, including a telephone number.
The plaintiff argued that in providing his cell phone number on the form, his consent to be contacted was only implied and did not meet the definition of "prior express consent." This argument was expressly rejected by the Court.
The Court also rejected the plaintiff's argument that the district court should have considered his argument that a 1992 FCC Order interpreting express consent was incorrect. According to the Court, the district court rightly refused to consider the plaintiff's argument that the 1992 FCC Order's interpretation was inapplicable and contrary to the plain language of the TCPA "because the effect would be to set aside, annul, or suspend the FCC Order and thus a violation of the Hobbs Act."
While the FCC's most recent pronouncements, about which we wrote here and here, have had the effect of broadening the scope of and raising the stakes under the TCPA, this decision endorses a view of "prior express consent" that allows calling parties in most contexts to call numbers voluntarily provided by consumers. For parties placing calls, the Eleventh Circuit's decision is a welcome and rare bit of good news as to the TCPA.
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