Joseph B. Murphy v. DCI Biologicals Orlando, LLC
2015 U.S. App. LEXIS 14632
| 11th Cir. | 2015Background
- Plaintiff Joseph Murphy received two automated marketing text messages from DCI Biologicals more than two years after donating plasma; one message included an MMS image and promotional content.
- Murphy alleged DCI collected and stored donor information (including his cell number) and used third-party automated platforms to send mass texts, violating the TCPA’s ban on autodialed calls without prior express consent.
- The complaint alleged Murphy provided his cell number on a New Donor Information Sheet completed before donation; he also alleged donor information would be kept confidential.
- DCI moved to dismiss, asserting Murphy’s provision of his phone number constituted prior express consent (an affirmative defense under the TCPA).
- The district court dismissed the autodialer claims, concluding it lacked jurisdiction under the Hobbs Act to challenge the FCC’s prior-express-consent interpretation in the 1992 FCC Order.
- The Eleventh Circuit affirmed, holding the 1992 FCC Order’s interpretation controls and that Murphy’s voluntary provision of his number constituted prior express consent to receive texts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether providing a cell number on a donor form constitutes "prior express consent" under the TCPA | Murphy: providing the number is only implied consent, not the prior express consent required by § 227(b)(1)(A) | DCI: supplying the number constitutes prior express consent under the FCC’s interpretation | Held for DCI: providing the number constituted prior express consent under the 1992 FCC Order |
| Whether district court may reject or revisit the FCC’s 1992 interpretation of "prior express consent" | Murphy: district court can apply the TCPA’s plain meaning rather than defer to the FCC | DCI: Hobbs Act bars district courts from invalidating or refusing to apply FCC orders; must defer | Held for DCI: Hobbs Act bars district court review of FCC order; Eleventh Circuit bound by FCC interpretation |
| Whether the FCC’s 1992 interpretation applies to wireless/text messages | Murphy: 1992 Order concerned landlines and should not control texts to cell phones | DCI: FCC’s interpretation applies broadly, and later FCC rulings confirm application to wireless/text calls | Held for DCI: FCC has consistently applied the interpretation to wireless and SMS calls; it controls |
| Whether FCC’s later 2012 rule change affects this case | Murphy: not raised as controlling | DCI: 2012 change postdates the texts; thus irrelevant | Held: 2012 written-consent rules do not apply because the messages preceded that rule change |
Key Cases Cited
- Adinolfe v. United Techs. Corp., 768 F.3d 1161 (11th Cir. 2014) (standard of review for Rule 12(b)(6) and accepting complaint allegations)
- Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993) (affirmative defenses may appear on the face of the complaint)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014) (Hobbs Act precludes district courts from rejecting FCC interpretations of prior express consent)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010) (courts defer to FCC orders adopted in rulemaking)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (issues not argued on appeal are abandoned)
- Columbia Broadcasting System v. United States, 316 U.S. 407 (1942) (agency rulemaking orders affecting rights generally have the force of law)