Joseph B. Murphy v. DCI Biologicals Orlando, LLC ( 2015 )

Case: 14-10414 Date Filed: 08/20/2015 Page: 1 of 13
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10414
________________________
D.C. Docket No. 6:12-cv-01459-CEH-KRS
JOSEPH B. MURPHY,
an individual, on behalf of himself
and all others similarly situated,
Plaintiff – Appellant,
versus
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.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 20, 2015)
Case: 14-10414 Date Filed: 08/20/2015 Page: 2 of 13
Before TJOFLAT, and JILL PRYOR, Circuit Judges, and MOODY, * District
Judge.
JILL PRYOR, Circuit Judge:
Plaintiff-Appellant Joseph Murphy brought this putative class action against
Defendants-Appellees 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
*
Honorable James S. Moody, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.
2
Case: 14-10414 Date Filed: 08/20/2015 Page: 3 of 13
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.
1
The text message also contained practical information such as the plasma center’s hours
and location and a number to call for questions.
3
Case: 14-10414 Date Filed: 08/20/2015 Page: 4 of 13
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
4
Case: 14-10414 Date Filed: 08/20/2015 Page: 5 of 13
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
2
The district court also dismissed Mr. Murphy’s other claims. Although Mr. Murphy’s
notice of appeal challenged the district court’s order in its entirety, his appellate briefing and
argument were limited to the auto dialer counts. We therefore consider only those counts. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n appellant
abandons a claim when he either makes only passing references to it or raises it in a perfunctory
manner without supporting arguments and authority.”).
3
The TCPA creates a private right of action for enforcement. 47 U.S.C. § 227(b)(3). A
person or entity may seek an injunction or monetary damages based on a violation of 47 U.S.C.
§ 227(b) or a regulation promulgated by the FCC thereunder. Id. § 227(b)(3)(A)-(C).
5
Case: 14-10414 Date Filed: 08/20/2015 Page: 6 of 13
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
6
Case: 14-10414 Date Filed: 08/20/2015 Page: 7 of 13
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
7
Case: 14-10414 Date Filed: 08/20/2015 Page: 8 of 13
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.
4
In 2012, the FCC altered the requisite form of prior express consent for “all autodialed
or prerecorded telemarketing calls to wireless numbers and residential lines,” specifying that
prior consent to be contacted must be “written” and setting forth disclosures that must be made
when obtaining prior consent. In re Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991 (“2012 FCC Order”), 27 FCC Rcd. 1830, 1831 ¶ 2, 1838 ¶ 20 (2012); see 47 C.F.R.
§ 64.1200(f)(8). This revision did not affect Mr. Murphy because he received the text messages
before the 2012 rules were implemented.
8
Case: 14-10414 Date Filed: 08/20/2015 Page: 9 of 13
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 orders.” Mais v. Gulf Coast
Collection Bureau, Inc., 768 F.3d 1110, 1120-21 (11th Cir. 2014). If the Hobbs
Act applies, a district court must afford FCC final orders deference and may only
consider whether the alleged action violates FCC rules or regulations.
FCC orders “‘adopted by the Commission in the avowed exercise of its rule-
making power’ that ‘affect or determine rights generally . . . have the force of law
and are orders reviewable under the’ Hobbs Act.” Id., 768 F.3d at 1121 (quoting
Columbia Broad. Sys. v. United States, 316 U.S. 407, 417 (1942)). In our recent
decision in Mais, we reversed the district court’s holding — that the 2008 FCC
Ruling’s interpretation of prior express consent in the context of debt collection
was inconsistent with the TCPA’s plain language — on the ground that the holding
violated the Hobbs Act’s prohibition on district court review of FCC orders. Id. at
9
 Case: 14-10414 Date Filed: 08/20/2015 Page: 10 of 13
1119-21. The 2008 FCC Ruling, which reiterated the 1992 FCC Order’s
interpretation of prior express consent, controlled in Mais. After Ms. Mais
provided her husband’s cell phone number on a hospital admission form, Mr. Mais
received calls from the hospital’s debt collection agent. We held that the calls did
not violate the TCPA because Ms. Mais’s provision of her husband’s number was
“consistent with the meaning of prior express consent announced by the FCC in its
2008 Ruling,” id. at 1126, and the “FCC did not distinguish or exclude medical
creditors from its 2008 Ruling.” Id. at 1122.
Mr. Murphy asks us to adopt the same interpretation of prior express consent
that the district court did in Mais, rather than the interpretation promulgated by the
FCC. We decline to do so. Acknowledging that the 2008 FCC Ruling’s treatment
of prior express consent was in line with prior FCC orders, including the 1992 FCC
Order, in Mais we further noted that the 1992 FCC Order’s interpretation of prior
express consent was consistent with the TCPA’s legislative history. We explained
that liability under the TCPA only inures for calls made without the called party’s
“prior express invitation or permission.” Id. at 1124. Here, we find no indication
that the 1992 FCC Order’s definition of prior express consent was limited such that
it does not cover Mr. Murphy’s situation. The district court rightly refused to
consider Mr. Murphy’s argument that the 1992 FCC Order’s interpretation was
inapplicable and contrary to the plain language of the TCPA because the effect
10
Case: 14-10414 Date Filed: 08/20/2015 Page: 11 of 13
would be to “set aside, annul, or suspend” the FCC Order and thus a violation of
the Hobbs Act.5
B.
Having determined that the district court correctly refused to entertain
arguments regarding the validity of the 1992 FCC Order, we turn to whether DCI’s
actions violated the TCPA under any FCC order. Mr. Murphy’s argument that
prior express consent must be given its plain language meaning fails because it
requires rejection of the FCC’s interpretation of prior express consent in FCC
orders. Absent a direct appeal to review the 1992 FCC Order’s interpretation of
prior express consent, we are bound to follow it. See CE Design, Ltd. v. Prism
Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir. 2010); cf. Mais, 768 F.3d at 1121
(holding the 2008 FCC Ruling had the force of law).6 Mr. Murphy’s complaint
alleged that he provided his cell phone number on DCI’s New Donor Information
Sheet, which he completed before giving blood plasma. Mr. Murphy gave his
prior express consent to receive auto dialed calls or text messages, such as the two
text messages he received, by providing his cell phone number, which was not
5
The district court’s opinion in this case, which was issued before we decided Mais,
criticized the district court decision in Mais as incorrectly holding that the Hobbs Act’s
jurisdictional provision did not apply. The district court’s analysis in this case is merely
strengthened by our reversal in Mais.
6
Mr. Murphy does not contest that the 1992 FCC Order is a final order. See CE Design,
606 F.3d at 448 n.4 (analyzing the 1992 FCC Order where CE Design did not contest that the
1992 FCC Order was “anything other than a final FCC order”).
11
Case: 14-10414 Date Filed: 08/20/2015 Page: 12 of 13
required under federal law for the donation of blood products. The form neither
requested a cell phone number specifically nor indicated that providing a cell
phone number was a prerequisite to donating blood plasma. Under § 227(b)(1)(A)
and the FCC’s interpretation of prior express consent, Mr. Murphy’s provision of
his cell phone number constituted his express consent to be contacted by DCI at
that number.
We are unpersuaded by Mr. Murphy’s argument that the 1992 FCC Order
does not apply to the facts of this case because it concerned only residential
landlines. As discussed above, the 1992 FCC Order’s interpretation of prior
express consent applied to § 227(b)(1)(A) generally. Cellular telephones are
expressly included in § 227(b)(1)(A), and the 1992 FCC Order’s discussion of
prior express consent gave no indication that cellular telephones should be
excluded. See 1992 FCC Order, 7 FCC Rcd. at 8768-69 ¶¶ 29-31. And, since
1992, the FCC has reiterated and consistently applied its interpretation of prior
express consent in the context of cell phone calls and text messages. See 2012
FCC Order, 27 FCC Rcd. at 1832 ¶ 4 (section 227(b)(1)(A), which “prohibits
certain categories of autodialed calls, absent an emergency or the ‘prior express
consent’ of the consumer[,] . . . encompasses both voice and text calls, including
short message service (SMS) calls.”); 2008 FCC Ruling, 23 FCC Rcd. at 564 ¶ 9
(“provi[ding] [] a cell phone number to a creditor, e.g., as part of a credit
12
Case: 14-10414 Date Filed: 08/20/2015 Page: 13 of 13
application, reasonably evidences prior express consent by the cell phone
subscriber to be contacted at that number regarding the debt.”). We therefore hold
that the 1992 FCC Order’s interpretation of prior express consent applies to Mr.
Murphy’s claims.
V.
By voluntarily providing his cell phone number to DCI, Mr. Murphy gave
his prior express consent to be contacted. Because Mr. Murphy’s complaint
alleges, on its face, facts that demonstrate prior express consent, we affirm the
district court’s dismissal of Mr. Murphy’s claims.
AFFIRMED.
13