Eleventh Circuit Court of Appeals Confirms Validity of “Prior Express Consent" in TCPA Case

On Thursday of last week, the Eleventh Circuit Court of Appeals issued a decision in Murphy v. DCI Biologicals Orlando, LLC, confirming the validity of ‘Prior Express Consent” in a Telephone Consumer Protection Act (TCPA) case. The plaintiff in a putative class action had challenged the validity of the Federal Communication Commission’s (FCC) 1992 interpretation of “prior express consent.”

The facts in Murphy were as follows: In the spring of 2010, the plaintiff visited the defendant’s offices to make several blood plasma donations. Before donating, the plaintiff filled out medical release and acknowledgement forms, as well as a “New Donor Information Sheet.”  Those documents asked for information required by federal law and for a personal telephone number. The plaintiff provided his cell phone number within the documents. Two years later, the plaintiff received two text messages, forty minutes apart, with the second text message containing an offer for increased compensation for plasma donations.

Plaintiff then filed his lawsuit on behalf of himself and sought class action status.

The District Court for the Middle District of Florida had previously dismissed the plaintiff’s claims; relying on a 1992 FCC Order defining “prior express consent” that stated: “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.”

Editor’s Note: In a 2012 Order, the FCC altered the requisite form of prior express consent for “all autodialed or prerecorded 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. This revision did not affect Mr. Murphy because he received the text messages before the 2012 rules were implemented.  

The Plaintiff filed this appeal.

The Court of Appeals agreed with the lower court and affirmed the dismissal of the case. The court’s decision was two-pronged.

First the court held that the 1992 FCC Order’s interpretation of prior express consent applies to Mr. Murphy’s claims.

Second, by voluntarily providing his cell phone number to DCI, Mr. Murphy gave his prior express consent to be contacted.

insideARM Perspective

It must be recognized that the activity in this case occurred prior to the aforementioned 2012 FCC order. Had the activity in question occurred subsequent to that order the result may have been different as the requisite “disclosures” required in that 2012 order were not present in the form documents filled out by the plaintiff.

However, the case does provide some additional support for the ARM industry in those cases where “prior express consent” consistent with the requirement of the 2012 order is available.