Eleventh Circuit Court Rules that Providing a Cell Phone Number on a Written Application or Other Form Constitutes “Prior Express Consent” Under the TCPA

If there remained a question of whether consenting in writing to be contacted on one’s cell phone constitutes “prior express consent” to receive calls at that number under the federal Telephone Consumer Protection Act (“TCPA”), it has been conclusively answered by the Eleventh Circuit Court in a recent opinion in Murphy v. DCI Biologicals Orlando, LLC.[1]  There, the court affirmed the dismissal of a claim that a plasma donation center had violated the TCPA by sending two text messages to the plaintiff, Mr. Murphy, more than two years after he provided his cell phone number on a “New Donor Information Sheet” when donating plasma.[2]  The opinion noted that the donation form “neither requested a cell phone number specifically nor indicated that providing a cell phone number was a prerequisite to donating blood plasma.”[3]  Discussing a 1992 order from the Federal Communications Commission (“FCC”) which interpreted the TCPA and provided 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,”[4] the Eleventh Circuit held that “[b]y voluntarily providing his cell phone number to DCI, Mr. Murphy gave his prior express consent to be contacted.”[5]  The court characterized this holding as being in line with its earlier decisions that recognized the FCC’s interpretation of the TCPA’s prior express consent provision as being “consistent with the TCPA’s legislative history.”[6]

Also at issue in Murphy, and central to the Eleventh Circuit’s affirmance of the underlying dismissal order, was whether the lower court had correctly determined that it lacked jurisdiction under the federal Hobbs Act[7] to review, and was therefore bound by, the interpretation of “prior express consent” contained in the 1992 FCC order.[8]  Also answering yes to that question, the court held that the federal district courts have no authority to disregard the FCC’s interpretation of the TCPA under the Hobbs Act, which grants the circuit courts exclusive jurisdiction to determine the validity of FCC orders.[9]  In so holding, the court explained that “absent a direct appeal to review the 1992 FCC Order’s interpretation of prior express consent,” it was “bound to follow it.”[10]

While the Eleventh Circuit’s opinion in Murphy may have closed the door on any remaining question whether voluntarily providing one’s cell phone as a contact number, in writing, constitutes prior express consent under the FCC’s 1992 interpretation of the TCPA, future litigation in this area is likely to focus on when a writing is required.  The Murphy court noted that in 2012, the FCC issued another order that made written consent a prerequisite for all automated telemarketing calls to wireless customers.[11]  Though the order seemingly did not impact existing consent rules for non-telemarketing calls, such as those made for debt collection purposes (which it noted “require either written or oral consent if made to wireless consumers. . .”),[12] there could be a push to extend the writing requirement to other categories of calls.

The TCPA in many respects has been outdated by technology and culture.  Many consumers no longer have land lines and most no longer have cell phone plans that charge by the minute, so the need for financial protection from creditor or telemarketer calls which in the past resulted in increased cell phone bills, is minimal at best.  Yet the TCPA has become a fertile ground for litigation, generating sizeable statutory claims and even more sizeable attorney fee claims.  Some legislative or judicial modification of this statute in the near term seems plausible and sensible.

Christopher L. DeCort and James Jeffrey Burns are attorneys with Johnson & Cassidy, P.A. in Tampa, Florida.  As part of their business and commercial litigation practice, they defend creditors in state and federal courts against consumer claims brought under the TCPA (Telephone Consumer Protection Act), FCCPA (Florida Consumer Collection Practices Act) and FDCPA (Federal Debt Collection Practices Act).  They can be reached at (813) 699-4859, or by visiting www.jnd-law.com.

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[1] — F.3d —, 2015 WL 4940800 (11th Cir. Aug. 20, 2015).  The entire text of the Murphy opinion can be found at http://media.ca11.uscourts.gov/opinions/pub/files/201410414.pdf.

[2] Id. at *1.

[3] Id. at *4.

[4] 7 FCC Rcd. 8752, 8769 ¶ 31 (1992).

[5] Murphy, 2015 WL 4940800, at *5.

[6] Id. at *4 (citing Mais v. Gulf Coast Collection Bureau, Inc., 768 F. 3d 1110, 1124 (11th Cir. 2014)).

[7] 47 U.S.C. § 402(a).

[8] Murphy, 2015 WL 4940800, at *3.

[9] Id. at *3; see also Mais, 768 F. 3d at 1126 (holding that a district court violated the Hobbs Act when it ignored the FCC’s interpretation of the TCPA).

[10] Murphy, 2015 WL 4940800, at *4.

[11] Id. at *2 n.4 (citing 27 FCC Rcd. 1830, 1831 ¶ 2, 1838 ¶ 20 (2012)).

[12] 27 FCC Rcd. at 1841 ¶ 28 (emphasis added).