Common Sense Rulings on the Meaning of “Prior Express Consent”

On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.

In Murphy, the plaintiff (“Murphy”) attempted to bring a putative class action against three defendants: DCI Biologicals Orlando, LLC, DCI Biologicals, Inc., and Medserv Biologicals, LLC (“DCI”). Murphy, 2015 U.S. “App. LEXIS 14632, at *2-3. DCI, a buyer and reseller of blood products throughout the country, obtained Murphy’s cellular telephone number after he filled out a medical release that asked for his contact information, including his cellular telephone number when making donations in 2010. Id. Two years later Murphy received two text messages from DCI asking him to donate, and Murphy responded by filing a suit alleging that he had not provided prior express consent to receive autodialed calls. Id. at *3.

DCI moved to dismiss the case and argued that the Murphy gave prior express consent by providing his contact information. Id. at *4-5. The district court agreed with DCI and found that Murphy had provided prior express consent as defined by the FCC, and that it did not have jurisdiction under the Hobbs Act to contradict the FCC’s interpretation of prior express consent. Id. The Eleventh Circuit agreed that the district court lacked jurisdiction to contract the FCC’s interpretation, id. at *9-10, and then held that Murphy had provided prior express consent by providing his cellular telephone number, affirming the district court, id. at *11-12.

In Hill the plaintiff (“Hill”) claimed that he received over a hundred calls in violation of the TCPA from his creditor, Homeward Residential, Inc. (“Homeward”). See Hill 2015 U.S. App. LEXIS 14703, at *2. Hill incurred the debt in 2003 from another company. Id. At that time he provided that company with his home phone number and his work phone number. Id. Hill cancelled his home phone number three years later and obtained a cellar telephone number, which he provided to Homeward when the loan was transferred. Id. at *2-3. Eventually Hill fell behind on his mortgage and listed his cellular phone number on the modification document; he then asked Homeward not to call him at work, asking them to call his cellular telephone number instead. Id. When Hill defaulted on his mortgage, helisted his cellular telephone number on numerous documents. Id. He eventually filed suit under the TCPA. Id. After discovery, both parties moved for summary judgment which the district court denied because two questions of fact remained: (1) whether Homeward used an automatic telephone dialing system; and (2) whether the Hill had offered his cellular telephone number to Homeward. Id. at *3-4. The case proceeded to a jury, which returned a verdict in favor of Homeward.

Hill raised three issues in his appeal; however, the only substantive issue was whether the district court had given a proper jury instruction on “prior express consent.” Id. at *4. The Sixth Circuit held that the district court had properly instructed the jury on the meaning or prior express consent by using language from FCC Orders. Id. at *6. On appeal, Hill argued that the instructions were wrong because the district court should have instructed the jury that his cellular telephone number had to be provided during the initial transaction creating the debit. Id. at *6-7. However, the Sixth Circuit noted that “[u]nlike Hill, the FCC never uses the words initial or original before ‘transaction.’ It instead stays that the debtor has given his consent when he gives his number ‘during the transaction’ that involves the debt.” (quoting 23 F.C.C. Rcd. at 564-65, 567 (emphasis added). Id. at *7. The Sixth Circuit then noted that this rule allows creditors to call about debt, but prohibits them from calling about other topics. Judge Clay in a concurring opinion then questioned the FCC’s definition of “prior express consent;” however, he noted that this was not before the court.

Together these opinions show that courts are unwilling to narrow the definition of “prior express consent.”  Contrary holdings would have resulted in absurd results – such as Hill being able to sue his creditor for calling him on the number that he asked them to.  While these decisions do not change the definition of “prior express consent,” the Sixth and Eleventh Circuits have reaffirmed that companies can call individuals who provide their cellular telephone numbers as a point of contact and consent to receive the calls.

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