A judge in the Middle District of Florida last week sided with the defendants in a case that involved the use of an autodialer, text messages, and express consent under the TCPA – all hot topics in the ARM industry.

U.S. District Judge Charlene Honeywell, in the Middle District of Florida, granted the defendant’s motion to dismiss in Murphy v. DCI Biologicals Orlando, LLC, a class action brought under the Telephone Consumer Protection Act (TCPA). Honeywell held that the plaintiff failed to state a claim because he had admittedly provided his cell phone number to the defendants, an act constituting “express consent” to be autodialed.

The lead plaintiff donated blood plasma through the defendant’s office. When filling out the paperwork for the donation, he supplied his cell phone number as a point of contact. DCI later sent out a text message to the defendant, and others, using an autodialer. The text message was marketing-related, imploring the recipients to donate more plasma.

Murphy then sued DCI for violations of the TCPA and sought class action status on behalf of other that received the message.

According to Burr & Forman’s Consumer Finance Litigation blog, the court held that the plaintiff’s admission of providing his cell phone number to the defendants constituted “prior express consent” under the a 1992 FCC order.  The court rejected Murphy’s argument that the FCC order did not explicitly address express consent to be autodialed, noting that the order “did not define ‘express consent’ in a vacuum; on the contrary, the Order defined ‘express consent’ in the context of the TCPA and the TCPA speaks specifically to autodialed calls.”

Although the case did not involve an ARM company, Judge Honeywell specifically addressed the case of Mais v. Gold Coast Collection Bureau, Inc. She rejected the reasoning in Mais that found that district courts had the authority to review federal regulatory orders.  The Mais decision, also coming out of a district court in Florida, has caused great confusion regarding express consent under the TCPA.

“The Court cannot consider Murphy’s argument that the FCC’s definition of ‘express consent’ is, in essence, ‘implied consent’ and, as such, unfaithful to the plain language of the TCPA and should not be afforded deference,” wrote Honeywell.


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